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NORTH CAROLINA 

REGIS TEM 



AUG 19 1996 

KATHRITSTE R EVERETT 

VOLUME 11 • ISSUE 10 • Pages si f, ?^7<»^v library 
August 15, 1996 



ij, t^r:':- <»ii - > 



PUBLISHED BY 

\The Office of Administrative Hearings 
lules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



IN THIS ISSUE 

Commerce 

Enviromnentj, Health, and Natural Resources 

Executive Order 

Human Resources 

Justice 

Refrigeration Examiners 

Revenue 

Rules Review Commission 

Contested Case Decisions 



This publication is printed on permanent, acid-free paper in compliance -with G.S. 125-11.13 



i 



NORTH CAROLINA ADMINISTRATIVE DECISIONS 

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includes the OAH recommended decisions and other final agency decisions, as 
they are submitted to the OAH. 

A one-year subscription to Barclays Official NCAD includes: 

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Topical Index organized by Case Name and Subject 
Table of Cases, Statutes, and Regulations cited 
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NORTH CAROLINA 



IN THIS ISSUE 




Volume 1 1 , Issue 1 O 
Pages 8 1 7 - 879 



August 15, 1996 



This issue contains documents officially 
filed through July 25, 1996. 



I. EXECUTIVE ORDER 

Executive Order 97 . . 



III. 



817 



II, RULE-MAKING PROCEEDESfGS 
Justice 

Private Protective Services 



818 



PROPOSED RULES 

Environment, Health, and Natural Resources 

Environmental Management 824 - 838 

Human Resources 

Day Care Commission 819- 823 

Social Services 823-824 

Licensing Board 

Refrigeration Examiners 839 - 840 

Revenue 

Departmental Rules 838-839 



IV. TEMPORARY RULES 
Human Resources 

Medical Assistance . . 



841 - 842 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Marm III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



V. APPROVED RULES 843-851 

Commerce 

Energy 
Environment, Health, and Natural Resources 

Wildlife Resources and Water Safety 
Human Resources 
Social Services 



VI. RULES REVIEW COMlVnSSION ... 852 856 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 857 - 864 

Text of Selected Decisions 

95 OSP 1 179 865 - 873 

96 DOJ 0420 874 - 878 

VIII. CUMULATIVE INDEX 1 24 



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c/5 S2 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 97 

EMERGENCY RELIEF FOR DAMAGE CAUSED BY 

HURRICANE BERTHA 

WHEREAS, I have proclaimed that a state of emergency 
and threatened disaster exists in certain areas of North 
Carolina due to Hurricane Bertha; and 

WHEREAS, the United States Department of Transporta- 
tion, in conjunction with the North Carolina Department of 
Transportation, has declared a regional emergency justifying 
an exemption from 49 C.F.R. 390-399 (Federal Motor 
Carrier Safety Regulations); and 

WHEREAS, under the provisions of N.C.G.S. 166A-4(3) 
and 166A-6(c)(3), the Governor, with the concurrence of the 
Council of State, may regulate and control the flow of 
vehicular traffic and the operation of transportation services; 
and 

WHEREAS, with the concurrence of the Council of State, 
I have found that if vehicles bearing food, equipment, and 
supplies to relieve our hurricane-stricken counties must 
adhere to the weight restrictions of N.C.G.S. 20-88, 20-96 
and 20-118, citizens those counties likely will suffer losses 
and therefore, there is an imminent threat of widespread 
damage within the meaning of N.C.G.S. 166A-4(3); 

THEREFORE, pursuant to the authority vested in me as 
Governor by the Constitution and laws of this State, and 
with the concurrence of the Council of State, IT IS OR- 
DERED: 

Section L The Division of Motor Vehicles shall waive 
restrictions and penalties therefor arising under N.C.G.S. 
20-88, 20-96, and 20-118 for vehicles transporting food, 
equipment, and supplies, including necessary utility vehicles 
along our highways to North Carolina's hurricane-stricken 
counties. 

Section 2. Notwithstanding the waivers set forth above, 
restrictions and penalties shall not be waived under the 
following conditions: 

(A) When the vehicle weight exceeds the maximum 
gross vehicle weight criteria established by the 
manufacturer (GVWR) or 90,000 pounds gross 
vehicle weight, whichever is less. 



(B) When tandem axle weights exceed 42,000 pounds 
and single axle weights exceed 22,000 pounds. 

(C) When vehicle/vehicle combination exceeds 12 feet 
in width and a total overall combination vehicle 
length of 65 feet from bumper to bumper. 

Section 3. 

(A) Upon entering North Carolina, the vehicles will 
stop at the first available vehicle weight station 
and produce identification sufficient to establish 
that its load will be used for the Hurricane Bertha 
relief effort. All other safety restrictions apply. 
If returning vehicles are loaded with some other 
backhaul, all normal weight and permit restric- 
tions apply. 

(B) The $50.00 fee listed in N.C.G.S. 105-449.49 for 
a temporary trip f)ermit is waived for the vehicles 
described above. The penalties described in 
N.C.G.S. 20-382 concerning insurance registra- 
tion are waived also. Finally, no quarterly fuel 
tax is required because the exception in N.C.G.S. 
105-449.45(a)(l) applies. 

(C) The vehicles will be allowed only in primary and 
interstate routes designated by the North Carolina 
Department of Transportation. 

Section 4^ Vehicles described in Section 1 which are 
nonparticipants in North Carolina's International Registra- 
tion Plan will be permitted to pass through North Carolina 
in accordance with the spirit of the exemptions identified by 
this Executive Order. 

Section 5. The North Carolina Department of Transpor- 
tation shall enforce the conditions set forth in Sections 1 , 2, 
and 3 in a manner in which would best accomplish the 
implementation of this rule without endangering motorists in 
North Carolina. 

Section 6^ This Order shall not be in effect on bridges 
posted pursuant to N.C.G.S. 136-72. 

This Executive Order shall become effective immediately 
and shall remain in effect for 30 days. 

Done in the Capital City of Raleigh, North Carolina this 
the 12th day of July 1996. 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



817 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of 
a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. 150B-21.2. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 7 - PRIVATE PROTECTIVE 
SERVICES 



dards for an accepted polygraph instrument. 
12 NCAC 7D - The Board wishes to develop rules that will 
set forth the requirements to become a Certified Firearm 
Instructor Trainer. 



~\ Jotice of Rule-making Proceedings is hereby given by 
1 y the N.C. Private Protective Services Board in accor- 
dance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to 
adopt as a result of this notice of rule-making proceedings 
and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

12 NCAC 7D .0201, .0504, .0701, .0801. .0902; 12 NCAC 
ID. Other rules may be proposed in the course of the rule- 
making process. 



Reason for Proposed Action: 

12 NCAC 7D .0201, .0701, .0801, .0902 - The Board 

would like to consider changing the type and origin or 
criminal record checks that are submitted with an individ- 
ual 's application. 

12 NCAC 7D .0504 - The current rule requires a polygraph 
instrument to have a "permanent simultaneous recording on 
a moving chart. " Technology has changed and new instru- 
ments no longer record data on moving charts. 
12 NCAC 7D - No rules currently exist to specify what is 
required for an instructor to teach others how to instruct. 



Authority for the rule-making: G.S. 74C-5 

Statement of the Subject Matter: 

12 NCAC 7D .0201, .0701, .0801, .0902 - The rules 

currently set forth standards for submission of an applicant's 

criminal record check. 

12 NCAC 7D .0504 - The rule sets forth the basic stan- 



Comment Procedures: Written comments concerning this 
rule-making activity may be submitted within sixty days of 
this publication to W.A. Hoggard, 111, Administrator, N.C. 
Private Protective Services Board, 3320 Old Gamer Road, 
Raleigh, North Carolina 27626. 



818 



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PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published 
a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). 
Statutory reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Child Day Care 
Commission intends to adopt rules cited as 10 NCAC 3U 
.2701, .2702, .2703, .2704 and to amend rule cited as 10 
NCAC 3U .0102. Notice of Rule-making Proceedings was 
published in the Register on January 16, 1996. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 4:00 - 8:00 p.m. on 
September 4, 1996 at the Division of Child Development, 
319 Chapanoke Road, Suite 120, Room 300, Raleigh, NC 
27603. 

Reason for Proposed Action: Permanent rules will replace 
previously adopted temporary rules that outline criminal 
records check procedures for child day care providers. 

Comment Procedures: Comments may be presented in 
writing any time before or at the public hearing or orally at 
the hearing. Time limits for oral remarks may be imposed 
by the Commission Chairman. Any person may request 
copies of these Rules by calling Jeanne Marlowe, Division 
of Child Development , 319 Chapanoke Road, Suite 120, 
Raleigh, NC 27603, (919) 662-4527. 

Fiscal Note: These Rules do affect the expenditures or 
revenues of state funds. These Rules do not affect local 
finds. These Rules do not have a substantial economic 
impact of at least five million dollars ($5,000,000) in a 12- 
month period. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE 
STANDARDS 

SECTION .0100 - PURPOSE AND DEFINITIONS 

.0102 DEFINrriONS 

The terms and phrases used in this Subchapter shall be 
defined as follows except when the content of the Rule 
clearly requires a different meaning. The definitions 
prescribed in G.S. 110-86 also apply to these rules. 

(1) "Age appropriate" means suitable to the chrono- 
logical age range and developmental characteris- 
tics of a specific group of children. 



(2) "Agency" means the Child Day Care Section, 
Division of Facility Services, Department of 
Human Resources, located at 701 Barbour Drive, 
Raleigh, North Carolina 27603. 

(3) "Appellant" means the person or persons who 
request a contested case hearing. 

(4) "A" license means the license issued to day care 
operators who meet the minimum requirements 
for the legal operation of a child day care facility 
pursuant to G.S. 110-91 and applicable rules in 
this Subchapter. 

(5) "AA" Ucense means the license issued to day care 
operators who meet the higher voluntary standards 
promulgated by the Child Day Care Commission 
as codified in Section .1600 of this Subchapter. 

(6) "Child Care Program" means a provider of child 
day care services and may consist of a single 
center or home, or a group of centers or homes 
or both, which are operated by one owner or 
supervised by a common sponsor. 

(7) "Child day care provider" as defined by G.S. 
110-90.2 and used in Section .2700 of this Sub- 
chapter, includes but is not limited to the follow- 
ing employees: facility directors, administrative 
staff, teachers, teachers' aides, cooks, mainte- 
nance personnel and drivers. 

(8) f7)"Day care center" means any day care facility 
as defined in G.S. 110-86(3) which is authorized 
to provide day care to 13 or more children when 
any child present is preschool-age according to the 
definition of preschool -aged child in this Rule. 

(9) (*^"Day care home" means any child day care 
home as defined in G.S. 110-86(4) which pro- 
vides day care on a regular basis of at least once 
per week for more than four hours, but less than 
24 hours per day. Child care arrangements 
excluded from the definition of day care facility in 
G.S. 110-86(3) are excluded as day care homes. 

(10) (9) "Department" means the Department of Human 
Resources. 

(1 1) (-tO)"Division" means the Division of Facility 
Services within the Department of Human Re- 
sources. 

(12) fl-i)"Drop-in care" means a child day care ar- 
rangement where children attend on an intermit- 
tent, unscheduled basis. 

(13) f4-S)"Group" means the children assigned to a 
specific caregiver, or caregivers, to meet the 
staff/child ratios set forth in G.S. 110-91(7) and 
this Subchapter, using space which is identifiable 



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August 15, 1996 



819 



PROPOSED RULES 



(14) 
(15) 



(16) 

(17) 



(18) 



(19) 



(20) 



(22) 



(23) 



(24) 



i25j 



for each group. 

f4-^"Large child day care center" or "large 
center" means any day care center which is 
authorized to provide care to 80 or more children. 
f44-)" Large child day care home" or "large home" 
means any day care facility as defined Ln G.S. 
110-86(3) which is authorized to routinely provide 
care to a maximum of 12 children when any child 
present is preschool-aged or, when all children 
present are school-aged, to a maximum of 15 
children. Provided the appropriate child/staff 
ratios are not exceeded, the large home may 
exceed these maximum capacities by no more than 
two children: 
(a) during the school year for no more than 

one hour immediately after school; and 
Qs) during the two week period preceding and 

the two week period following the public 

school year. 
f4^"Licensee" means the person or entity that is 
granted permission by the State of North Carolina 
to operate a day care center. 
f4-6^" Licensing Manual" means the document 
published by the Child Day Care Section which 
contains the procedures and standards required by 
North Carolina law, the Commission and the 
Department for licensure of child day care cen- 
ters. The Ucensing manual may be obtained from 
the Section at the address given in Paragraph (1) 
of this Rule. 

<4^"Medium child day care center" or "medium 
center" means any day care center which is 
authorized to provide day care to at least 30 but 
no more than 79 children. 

f4-8^"Operator" means the person or entity held 
responsible by law as the owner of a child day 
care business. The terms "operator", "sponsor" 
or "licensee" are used interchangeably. 
f4-^"Part-time care arrangement" means a child 
care arrangement as defined Ln G.S. 110-86 which 
provides care on less than a full-time basis. 
Examples of part-time care arrangements are 
certain drop-in, before/after school, and seasonal 
programs. 

(3d) "Passageway" means a hall or corridor. 
(54-) "Preschool (formerly preschool-aged) child" 
means any child under 13 years of age who does 
not fit the definition of school-aged child in this 
Rule. 

(S3) "Provisional License" means the type of 
license issued to a center which does not conform 
in everv' respect with the standards for an "A" 
license. 

(33) "Registrant" means the person or entity that is 
granted permission b> the State of North Carolina 
to operate a day care home. 
(34) "School -aged child" means any child who is 



(26) 

(27) 
(28) 



at least five years old on or before October 16 of 
the current school year and who is attending, or 
has attended, a public or private grade school or 
kindergarten. 

(35)"Section" means the Child Day Care Section, 
Division of Facility Services, Department of 
Human Resources. The Section is located at the 
address given in Item (1) of this Rule. 
(36)"Small day care center" or "small center" 
means any day care center which is authorized to 
provide day care for a maximum of 29 children. 
(3^"Small day care home" or "small home" 
means the child care arrangements defined in G.S. 
110-86(4) which are subject to the registration 
requirements set forth in Section .17(X) of this 
Subchapter. 

(3S)"Special Provisional License" means the type 
of License which may be issued a day care opera- 
tor pursuant to the conditions of G.S. 1 10-88 (6a) 
when child abuse or neglect has occurred Ln the 
center. 

(39)"Substitute" means any person who tempo- 
rarily assumes the duties of a regular staff person 
for a time period not to exceed two consecutive 
months. 

(50)"Teacher" means the caregiver who has 
responsibility for planning and implementing the 
daily program of activities for each group of 
children. 

(34) "Temporary care arrangement" means any 
child day care arrangement required to be regu- 
lated pursuant to G.S. 110-86 which provides 
either drop-in care or care on a seasonal or other 
part-time basis. 

(33)"Temporary license" means the license which 
may be issued when a licensed center changes 
location or changes ownership. 
(^3)" Volunteer" means a person who works in a 
day care center or day care home and is not 
monetarily compensated by the center or home. 



Authority G.S. 110-88; 143B-168.3. 
SECTION .2700 - CRL^^NAL RECORDS CHECKS 

.2701 APPLICATION FOR PERMITS 

(a) Beginning with the date set forth in the Division's 
implementation schedule, and in addition to the requirements 
set forth in Rule .0302 of this Subchapter and in Rule .1702 
of this Subchapter the prospective child care provider shall 
submit to the Division at the time of application the follow- 
ing forms: 

(1) a certified criminal history check from the Clerk 
of Superior Court's office in the county where the 
mdividual resides; 

(2) a signed Authority for Release of Information 
using the form provided by the Division: and 



(29) 



(30) 



(Hi 



(32) 



(33) 



(34) 



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August 15, 1996 



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PROPOSED RULES 



(3) a completed fingerprint card using SBI form FD- 
258. 
If the prospective child care provider has lived in North 
Carolina for less than five consecutive years immediately 
preceding the date the fingerprint card is completed, a 
second fingerprint card shall be submitted in order to 
complete a national check. 

(b) The prospective child care provider shall sign and 
submit a statement declaring under penalty of penury rf he 
or she has been convicted of a crime other than a minor 
traffic violation. If the prospective child care provider has 
been convicted of a crime including, but not limited to. 
those specified in G.S. 110-90.2. the prospective child care 
provider shall acknowledge on the statement that he or she 
is aware that the issuance of a permit is conditional pending 
approval by the Division. 

(c) If the prospective child care provider has been 
convicted of a crime including, but not limited to. those 
specified in G.S. 110-90.2. he or she may submit to the 
Division additional information concerning the conviction 
that could be used by the Division in making the determina- 
tion of the prospective child care provider's qualification. 
The Division may consider the following in making their 
decision: length of time since conviction; nature of the 
crime; circumstances surrounding the commission of the 
offense or offenses; evidence of rehabilitation; number of 
prior offenses; and age of the individual at the time of 
occurrence. 

(d) A prospective child care provider's refusal to com- 
plete the required criminal history record check paperwork 
is reasonable cause to deny issuance of a permit. 

(e) The Division shall notify the prospective child care 
provider in writing of the determination by the Division of 
the individual's fitness to have responsibility for the safety 
and well-being of children based on the criminal history. 

(f) Determination by the Division that the prospective 
child care provider is disqualified is reasonable cause to 
deny issuance of a permit. 

(g) If the prospective child care provider is a firm. 



partnership, association, or corporation, the chief executive 
officer or other person serving in like capacity, or a person 
designated by the chief executive officer as responsible for 
the operation of the facility, shall complete the criminal 
history record check as specified in Paragraph (a) of this 
Rule. 



fh) When a Letter of Intent to Operate pursuant to G.S. 
110-106 and G.S. 110-106.1 is submitted to the Division. 
the person signing the Letter of Intent shall also submit all 
forms as required in Rule .2702(a) of this Section. 

{i} Determination by the Division that the person submit- 
ting the Letter of Intent is disqualified is reasonable cause to 
issue a Notice to Cease Operation. 

(j) Any child care provider who owns or operates an 
existing child care program, and who is applying for a 
permit for an additional child care program within one year 
from the date of qualification that was based on fingerprint- 
ing, shall submit a certified criminal history check from the 



Clerk of Superior Court's office in the county where the 
individual resides. A new fingerprint card shall not be 
required unless deemed necessary by the Division in making 
the determination of qualification. If the criminal history 
check was completed more than one year prior to the 
application for an additional child care program, the 
applicant shall complete all forms as required in Paragraph 
(a) of this Rule. 

Authority G.S. 110-90.2; 114-19.5; 143B-168.3; S.L. 1995, 
c. 507, s. 23.25. 

.2702 CRIMINAL RECORD CHECK 

REQUIREMENTS FOR CHILD CARE 
PROVIDERS 

(a) Beginning with the date set forth in the Division's 
implementation schedule, child care providers shall submit 
the following to their employer no later than five working 
days after beginning work: 

(1) a certified criminal history check from the Clerk 
of Superior Court's office in the county where the 
individual resides; 
£2} a signed Authority for Release of Information 
using the form provided by the Division; 

(3) a fingerprint card using SBI form FD-258; and 

(4) a signed statement declaring under penalty of 
perjury if he or she has been convicted of a crime 
other than a minor traffic violation. 

If the child care provider has been convicted of a crime, 
including, but not limited to, those specified in G.S. 1 10- 
90.2, the child care provider shall acknowledge on the 
statement that he or she is aware that the employment is 
conditional pending approval by the Division. If the child 
care provider has lived in North Carolina for less than five 
consecutive years immediately preceding the date the 
fingerprint card is completed, a second fingerprint card shall 
be submitted in order to complete a national check. 

(h) If the child care provider has been convicted of a 
crime, including, but not limited to, those specified in G.S. 
1 10-90.2, he or she may submit to the Division additional 
information concerning the conviction that could be used by 
the Division in making the determination of the provider's 
qualification for employment. The Division may consider 
the following in making their decision: length of time since 
conviction; nature of the crime; circumstances surrounding 
the commission of the offense or offenses; evidence of 
rehabilitation; number of prior offenses; and age of the 
individual at the time of occurrence. 

(c) The child care provider's employer shall mail the 
local criminal history check. Authority for Release of 
Information using the form provided by the Division, and 
fingerprint card(s) to the Division no later than three 
working days after receipt. A copy of the submitted 
information, and the declaration statement, shall be main- 
tained in the child care provider's personnel file, and shall 
be available for review by a representative of the Division. 

(d) TTie child care provider shall be on probationary 



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August 15, 1996 



821 



PROPOSED RULES 



status pending the determination of qualification or disquali- 
fication by the Division. 

(e) The Division shall notify the child care provider in 
writing of the determination by the Division of the individ- 
ual's fitness to have responsibility for the safety and well- 
being of children based on the criminal history. The 
Division shall notify the employer if any, in writing of the 
Division's determination concerning the child care provider; 
however, the employer shall not be told the specific infor- 
mation used in making the determination. 

(f) If the child care provider changes employers within 
one year from the date of qualification that was based on 
fingerprinting, he or she shall submit a certified criminal 
history check from the Clerk of Superior Court's office in 
the county where the individual resides. This local check 
shall be submitted to his or her employer no later than five 
working days after beginning work. The employer shall 
complete the steps as defined in Paragraphs (c). (d) and (g) 
of this Rule. A new fingerprint card shall not be required 
unless deemed necessary by the Division in making its 
determination of qualification. If the criminal history check 
was completed more than one year prior to employment, the 
child care provider shall complete all forms as required in 
Paragraph (a) of this Rule. 

(g) Child care providers determined by the Division to be 
disqualified shall be terminated by the facility or small day 
care home immediately upon receipt of the disqualification 
notice. 

(h) Refusal on the part of the employer to dismiss a child 
care provider who has been found to be disqualified shall be 
grounds for suspension, denial or revocation of the permit 
in addition to any other administrative action or civil 
penalties pursued by the Division. If an employer appeals 
the administrative action, the child care provider shall not be 
employed during the appeal process. 

(ij A substitute child care provider who is employed for 
more than five days, whether working full or part-time, 
shall submit all forms as required in Paragraph (a) of this 
Rule to the employer by the end of the fifth working day. 
The employer shall complete the steps as defined in Para- 
graphs (c), (d) and (g} of this Rule. 

Authority G.S. 110-90.2; 114-19.5; 143B-168.3; S.L. 1995, 
c. 507, s. 23.25. 

.2703 CRIMINAL RECORD CHECK REQS FOR 
CURRENT CHILD CARE PROVIDERS 

(a) Current child care providers shall submit all forms as 
required in Rule .2702(a) of this Section and based upon the 
implementation schedule developed by the Division. 

(b) If the child care provider has been convicted of a 
crime, including, but not hmited to. those specified in G.S. 
1 10-90.2. he or she may submit to the Division additional 
information concerning the conviction that could be used by 
the Division in making the determination of the provider's 
qualification. The Division may consider the following in 
making their decision: length of time since conviction: 



nature of the crime; circumstances surrounding the commis- 
sion of the offense or offenses; evidence of rehabilitation: 
number of prior offenses: and age of the individual at the 
time of occurrence. 

(c") The Division shall notify the child care provider in 
writing of the determination by the Division of the individ- 
ual's fitness to have responsibility for the safety and well- 
being of children based on the criminal history. The 
Division shall notify the employer, if any, in writing of the 
Division's determination concerning the child care provider: 
however the employer shall not be told the specific informa- 
tion used in making the determination. 

(d) Child care providers determined by the Division to be 
disqualified shall be terminated by the facility or small day 
care home immediately upon receipt of the notification. 

(e) Refusal on the part of the employer to dismiss a child 
care provider who has been found to be disqualified shall be 
grounds for suspension, denial or revocation of the permit 
in addition to any other administrative action or civil 
penalties pursued by the Division. 

(f) Determination by the Division that the employer is 
disqualified is reasonable cause to suspend, deny or revoke 
the permit in addition to any other administrative actions or 
civil penalties pursued by the Division. 

Authority G.S. 110-90.2; 114-19.5; 143B-168.3; S.L. 1995, 
c. 507. s. 23.25. 

.2704 CRIMINAL RECORD CHECK REQS FOR 
NONREGISTERED HOME PROVIDERS 

(a) Beginning with the date set forth in the Division's 
implementation schedule for current noru'egistered home 
providers, and no later than five working days after apply- 
ing for enrollment as a nonregistered home provider of 
subsidized child day care, the nonregistered home provider 
shall submit the following to the local purchasing agency: 

(1) certified criminal history check from the Clerk of 
Superior Court's office in the county where the 
individual resides: 

(2) a signed Authority for Release of Information 
using the form provided by the Division; 

(3) a fingerprint card using SBI form FD-258; and 

(4) a signed statement declaring under penalty of 
perjury if he or she has been convicted of a crime 
other than a minor traffic violation. 

If the nonregistered home provider has been convicted of a 
crime, including, but not limited to. those specified in G.S. 
1 10-90.2. the nonregistered home provider shall acknowl- 
edge on the statement that he or she is aware that payment 
is conditional pending approval by the Division. If the 
nonjegistered home provider has lived in North Carolina for 
less than five consecutive years immediately preceding the 
date the fingerprint card is completed, a second fingerprint 
card shall be submitted in order to complete a national 
check. 

(b) If the nonregistered home provider has been con- 
victed of a crime, including, but not limited to. those 



822 



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August 15, 1996 



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PROPOSED RULES 



specified in G.S. 1 10-90.2. he or she may submit to the 
Division additional information concerning the conviction 
that could be used by the Division in making the determina- 
tion of the provider's qualification. The Division may 
consider the following in making their decision: length of 
time since conviction: nature of the crime: circumstances 
surrounding the commission of the offense or offenses: 
evidence of rehabilitation: number of prior offenses; and age 
of the individual at the time of occurrence. 

(c) The local purchasing agency shall mail the local 
criminal history check. Authority for Release of Information 
using the form provided by the Division, and fingerprint 
card(s) to the Division no later than five working days after 
receipt. A copy of the submitted information, and the 
declaration statement, shall be maintained in the nonregis- 
tered home provider's file. 

£d} A nonregistered home provider may receive payment 
during the period in which the state or national criminal 
history check is being completed if the applicant would 
otherwise receive approval or temporary approval from the 
local purchasing agency for enrollment in the subsidized 
child day care program, subject to the provisions referenced 
in 10 NCAC 46G .0111(b). 10 NCAC 46G .0214. and 10 
NCAC 46G .0215. 

(e) The Division shall notify the nonregistered home 
provider in writing of the determination by the Division of 
the individual's fitness to have responsibility for the safety 
and well-being of children based on the criminal history. 
The Division shall notify the local purchasing agency in 
writing of the Division's determination concerning the 
nonregistered home provider; however, the local purchasing 
agency shall not be told the specific information used in 
making the determination. 

(f) Disqualification of a nonregistered home provider by 
the Division shall be reasonable cause for the local purchas- 
ing agency to deny further payment. 

(g) If a nonregistered home provider disagrees with the 
decision of disqualification and files a civil action in district 
court, the provider may continue to operate but shall not 
receive payment during the proceedings. If the determina- 
tion is that the nonregistered home provider is qualified, the 
nonregistered provider shall receive retroactive payment for 
the care that was provided. 

Authority G.S. 110-90.2: 114-19.5; 1438- 168. 3; S.L. 1995, 
c. 507, s. 23.25. 



A Public Hearing will be conducted at 10:00 a.m. on 
October 17, 1996 at the Albemarle Building, Room 943-2, 
325 North Salisbury Street, Raleigh, NC 27603. 

Reason for Proposed Action: The action to adopt is 
required to ensure that requirements of Chapter 449 of the 
1995 Session Laws (Senate Bill 864) are met. This statute 
gives the Social Services Commission the authority to adopt 
rules associated with independent case management for 
residents of adult care homes in North Carolina. Effective 
January 1 , 1996 certain "heavy care" Medicaid residents 
became eligible for Enhanced Adult Care Home care. Initial 
Medicaid criteria for heavy care are residents who have very 
extensive needs for aide assistance with eating and toileting 
in addition to other forms of personal care. Adult Care 
Home Case Management is also required for these residents 
to verify that they qualify as heavy care residents, that the 
personal care provided by the adult care home is adequate 
to address the resident's needs, that other needed Medicaid 
financed service are arranged for and provided, and that 
changes in the resident 's condition are being appropriately 
responded to by the adult care home or other providers of 
care. 

Comment Procedures: Comments may be presented 
anytime before or at the public hearing or orally at the 
hearing. Time limits for oral remarks may be imposed by 
the Commission Chairman. Any person may request copies 
of these rules by calling or writing to Sharnese Ransome, 
APA Coordinator, Social Services Commission , NC Division 
of Social Services, 325 N. Salisbury Street, Raleigh, NC 
27603, phone: 919-733-3055. 

Fiscal Note: Rule .0701 affects the expenditures or reve- 
nues of local government funds and affects the expenditure 
or distribution of State finds subject to the Executive Budget 
Act, Article 1 of Chapter 143. Rule .0701 does have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. Rules .0702 and .0703 
do not affect state or local government funds and do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 



CHAPTER 42 



INDIVIDUAL AlVD FAMILY 
SUPPORT 



SUBCHAPTER 42A - ADULT PLACEMENT 
SERVICES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission intends 
to adopt rules cited as 10 NCAC 42A .0701 - .0703. Notice 
of Rule-making Proceedings was published in the Register on 
February 1, 1996. 

Proposed Effective Date: April 1, 1997 



SECTION .0700 - ADULT CARE HOME 
CASE MANAGEMENT 

.0701 AVAILABILITY 

Counties shall assure the availability of case management 
services to adult care home residents eligible for Medicaid 
funded Enhanced Adult Care Home Personal Care. 



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823 



PROPOSED RULES 



Authority G.S. 131D-4.3; 143B-153. 

.0702 CASE MANAGEMENT ACXrVITIES 

Adult Care Home Case Management shall include the 
following activities: 

(1) verifying the need for Enhanced Adult Care Home 

Personal Care; 
(2} assuring the adult care home's care plan corre- 
sponds to the needs of the resident: 

(3) reviewing the adult care home's provision of care 
to assure changes in the residents conditions are 
being addressed; 

(4) determining the need for other community based 
services which might benefit the resident; and 

(5) assisting the resident and the adult care home to 
access other needed services. 

Authority G.S. 131D-4.3; 143B-153. 

.0703 DESIGNATED AGENCIES 

Adult Care Home Case Management can be provided by 
m Area Mental Health Agency, a County Department of 
Social Services, or other agencies designated by the Depart- 
ment. 

Authority G.S. 131D-4.3; 143B-153. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
1508-21.2 that the EHNR - Environmental Manage- 
ment Commission intends to adopt rules cited as ISA NCAC 
23 .0231 - .0236. Notice of Rule-making Proceedings was 
published in the Register on April 15, 1996. 

Proposed Effective Date: July 1, 1997 

A Public Hearing will be conducted at 7:00 p. m. on the 
following dates and at the following locations: 

September 9, 1996 

Raleigh 

State Highway Building 

September 10, 1996 

Goldsboro 

Wayne Community College 

September 11, 1996 

New Bern 

Craven County Courthouse 

September 12, 1996 

Kinston 

Lenoir Community College 



Reason for Proposed Action: In 1988, the Environmental 
Management Commission (EMC) classified the entire Neuse 
River Basin as Nutrient Sensitive Waters (NSW). They 
adopted this classification due to nutrient-related water 
quality problems in the freshwater sections between Kinston 
and New Bern. At that time, the EMC adopted a Nutrient 
Management Strategy to improve water quality in the river. 
This initial NSW strategy addressed phosphorus reductions 
through point source controls and nitrogen from the volun- 
tary implementation of agricultural best management 
practices (BMPs). The strategy was successfd and phospho- 
rus loading has declined due to these point source controls 
and the phosphate detergent ban. 

Even with the management measures adopted in the initial 
NSW strategy, water quality problems in the lower Neuse 
River continue, especially below New Bern. For example, 
during July, September, and October 1995, widespread fish 
kills occurred in the Neuse River, mainly from New Bern to 
Minnesott Beach. Millions offish were killed. The water 
was lacking oxygen near the surface and algal blooms were 
common. Because of these continued water quality prob- 
lems, the EMC intends to revise the NSW strategy and to 
focus on nitrogen loading to the estuary. Rules are pro- 
posed for the following components: 

• Wastewater Discharge Requirements (15 A NCAC 2B 
.0231), 

• Illegal Discharges Management Plan (15 A NCAC 2B 
.0232), 

• Stormwater Management (15 A NCAC 2B .0233), 

• Animal Waste Management (15A NCAC 2B .0234),* 

• Buffers (15A NCAC 2B .0235), and 

• Nutrient Management (15 A NCAC 2B .0236). 

• Two alternatives are being proposed for animal waste 
management. The EMC approved these two alternatives for 
public hearing before the 1996 North Carolina General 
Assembly adjourned. During the 1996 session, a bill 
(Senate Bill 1217) was ratified that establishes a permitting 
and inspection program for animal operations. The require- 
ments of SB 1217 will reruier the proposed rule alternatives 
for animal operations unnecessary. Any animal waste 
management ndes that the EMC adopts as part of the NSW 
strategy for the Neuse River will reflect the requirements of 
Senate Bill 1217. Briefly, SB 1217 will require a permitting 
program using general and individual permits for animal 
operations ba.sed on size of operation 

Comment Procedures: The purpose of the announcement 
is to encourage those interested in this proposal to provide 
comments. You may submit comments, statements, data and 
other information in writing prior to, during or after the 
hearing but no later than October 14, 1996. You may also 
present verbal comments at the hearing. The Hearing 
Officer may limit the length of time that you speak so that 
all those who wish to speak may have an opportunity to do 



824 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



so. We encourage you to submit written comments. It is 
very important that all interested and potentially affected 
persons or parties make their views known to the Environ- 
mental Management Commission (EMC) whether in favor of 
or opposed to any and all provisions of the proposal being 
noticed. If opposed to any or all provisions of the proposal 
we encourage you to offer appropriate alternative proposals. 
The EMC may not adopt a rule that differs sub stantilly from 
the text of the proposed rule published in the North Carolina 
Register unless the EMC publishes the text of the proposed 
different rule and accepts comments on the new text. [See 
G.S. 150B-2 1.2(g)] Written comments may be submitted to: 
David Harding 
DEHNR/Division of Water Quality 
PO Box 29535 
Raleigh, NC 27626-0535 
(919) 733-5083, extension 569 
Questions concerning proposed requirements for point source 
dischargers may be directed to Coleen Sullins at (919) 733- 
5083, ext. 550 and questions concerning proposed nonpoint 
source requirements to David Harding at (919) 733-5083, 
ext. 569. 

Fiscal Note: A Fiscal Analysis was prepared by the Divi- 
sion of Water Quality and is available for public review. 
For information on the Fiscal Analysis, please call Marsha 
Byrd at (919) 733-5083, ext 558. 

• Wastewater Discharge Requirements (15A NCAC 2B 
.0231) - This Rule does affect the expenditures or 
revenues of local government funds. This Rule does 
not affect the expenditures or revenues of state 
government funds. This Rule does have a substantial 
economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

• Illegal Discharges Management Plan (15A NCAC 2B 
.0232) - This Rule does affect the expenditures or 
revenues of local government funds. This Rule does 
not affect the expenditures or revenues of state 
government funds. This Rule does not have a sub- 
stantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

• Stormwater Management (15A NCAC 2B .0233) - 
This Rule does affect the expenditures or revenues of 
local government funds. This Rule does not affect the 
expenditures or revenues of state government funds. 
This Rule does not have a substantial economic 
impact of at least five million dollars ($5,000,000) in 
a 12-month period. 

• Animal Waste Management (15A NCAC 2B .0234) - 
This Rule does not affect the expenditures or revenues 
of local or state government funds. This Rule does 
not have a substantial economic impact of at least 
five million dollars ($5,000,000) in a 12-month 
period. 

• Buffers (15A NCAC 2B .0235) - This Rule does not 
affect the expenditures or revenues of local or state 



gov eminent funds. This Rule does not have a sub- 
stantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 
• Nutrient Management (15A NCAC 2B .0236) - This 
Rule does affect the expenditures or revenues of local 
government funds. This Rule does not affect the 
expenditures or revenues of state government funds. 
This Rule does not have a substantial economic 
impact of at least five million dollars ($5,000,000) in 
a 12-month period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



SUBCHAPTER 2B 
STANDARDS: 



SURFACE WATER 
MONITORING 



SECTION .0200 - CLASSIFICATIONS AND WATER 

QUALITY STANDARDS APPLICABLE TO 

SURFACE WATERS OF NORTH CAROLINA 

.0231 NEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: WASTEWATER DISCHARGE 
REQUIREMENTS 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy a pplies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion. 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231. 
.0232. .0233. .0234. .0235 and .0236 of this Section. The 
following is the wastewater discharge management strategy 
for the Neuse River Basin: 

(1) All new and expanding dischargers will be re- 
quired to document that all practical alternatives 
to surface waters discharge were employed pursu- 
ant to 15A NCAC 2B .0201(0(1). 

(2) All wastewater dischargers greater than or equal 
to 0^ MGD permitted flow regardless of current 
loading levels are required to evaluate and opti- 
mize the operation of their facilities in order to 
reduce nutrient loadings. One year after the 
effective date of this Rule, a report shall be 
submitted to the Division documenting the ef- 
forts/level of reductions achieved. 

(3) No new domestic wastewater discharges to sur- 
face waters of less than 0.5 MGD shall be permit- 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



825 



PROPOSED RULES 



ted. Proposed domestic wastewater dischargers to 
surface waters that request a permit for 0.5 MGD 
or greater shall be required to justify flows based 
on full build out of the site. No phasing of less 
than 0.5 MGD will be allowed for construction of 
the wastewater treatment plants. Existing munici- 
pal dischargers shall be exempt from this Sub- 
Item after it is shown that no alternative to dis- 
charge exists pursuant to 15A NCAC 2B 
.0201(c)(1). Flows permitted by February J^ 
1996 are also not affected. 
(4) All dischargers within the basin below Falls Lake 
Dam will have the option of forming a coalition 
(hereafter referred to as the "Association") to 
implement nutrient reduction through a nutrient 
trading program. 

(a) For dischargers that join the Association, 
an agreement will be drafted between the 
Division and the Association that includes, 
but is not limited to the following: mem- 
bership in Association, final loading targets 
based on a 30 percent reduction of calendar 
year 1995 nitrogen loads from the member- 
ship within five years of the effective date 
of this Rule, payment schedule for BMPs 
in years loading targets are not met, moni- 
toring requirements for Association mem- 
bers, and the credit life of BMPs. No 
Association exists, for the purposes of this 
Rule, until the Agreement is formally 
approved by the Commission. All existing 
Association dischargers that have a permit- 
ted flow greater than or equal to 0^ MGD 
and any new or expanding Association 
dischargers will receive a quarterly average 
total phosphorus limit of 2 mg/1 in their 
NPDES permits. 

(b) For dischargers that do not join the Associ- 
ation and dischargers above Falls Lake 
Dam, the following requirements apply: 

(i) All existing municipal and domestic 
dischargers greater than or equal to 
0.5 MGD below Falls Lake Dam 
must meet a monthly average total 
nitrogen limit of 6 mg/1 within five 
years from the effective date of this 
Rule. These facilities must meet a 
quarterly average total phosphorus 
limit of 2 mg/1. More stringent 
limits may apply to protect localized 
areas, 
(ii) All existing facilities above Falls 
Lake Dam with permitted flows 
greater than or equal to 0.05 MGD 
will be required to meet a quarterly 
average total phosphorus limit of 2 
mg/1. More stringent limits may 



apply to protect localized areas. 

(iii) All proposed new industrial and new 
and expanding domestic or municipal 
wastewater dischargers, where dis- 
charge is the only environmentally 
and economically feasible option, 
must comply with a monthly average 
total nitrogen limit of 6 mg/1 and a 
monthly average total phosphorus 
limit of i mg/1. More stringent 
limits may be given to protect local- 
ized areas. 

(jy) Existing industrial process 

wastewater dischargers below Falls 
Lake Dam and expanding industrial 
process wastewater dischargers 
within the basin will be evaluated by 
the Division on an individualized 
basis. The industries within the 
management area will be required to 
control total nitrogen to the best 
available technology levels applica- 
ble to the specific wastestream. For 
the purposes of this strategy, the 
definition of best available technol- 
ogy will be required to be individu- 
ally developed for each facility. A 
report must be submitted and ap- 
proved by the Division of Water 
Quality within two years of the ef- 
fective date of this Rule which out- 
lines best available technology for 
their particular site. All existing 
industrial process wastewater dis- 
chargers below Falls Lake Dam with 
a permitted flow of 0^ MGD or 
greater will receive a quarterly aver- 
age total phosphorus limit of 2 mg/1. 
Expanding industrial process 
wastewater dischargers in the basin 
will receive a monthly average total 
phosphorus limit of ]_ mg/1. More 
stringent limits may apply to protect 
localized areas. 

(v) All new and expanding wastewater 
dischargers will be required to offset 
their additional nutrient loads by 
funding nonpoint source control 
programs approved by the Division 
of Water Quality. Nitrogen and 
phosphorus loads shall be offset at 
the rate of 110 percent of the cost to 
implement BMPs designed to reduce 
that same loading created by the new 
or expanding discharge, 
(c) If no Association of dischargers is formed. 

the following requirements will apply to 



826 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



dischargers in the Neuse River Basin: 
(i) All existing municipal and domestic 
dischargers greater than or equal to 
0.5 MGD below Falls Lake Dam 
must meet a monthly average total 
nitrogen limit of 6 mp/1 within Five 
years from the effective date of this 
Rule. These facilities must meet a 
quarterly average total phosphorus 
limit of 2 mg/1. More stringent 
limits may apply to protect localized 
areas. 

(ii} All existing facilities above Falls 
Lake Dam with permitted flows 
greater than or equal to 0.05 MGD 
will be required to meet a quarterly 
average total phosphorus limit of 2 
mg/1. More stringent limits may 
app ly to protect localized areas. 

(111) All proposed new industrial and new 
and expanding domestic or municipal 
wastewater dischargers, where dis- 
charge is the only environmentally 
and economically feasible option, 
must comply with a monthly average 
total nitrogen limit of 6 mg/1 and a 
monthly average total phosphorus 
limit of J_ mg/1. More stringent 
limits may be given to protect local- 
ized areas. 

industrial 



Civ) Existing 



process 



wastewater dischargers below Falls 
Lake Dam and expanding industrial 
process wastewater dischargers 
within the basin will be evaluated by 
the Division on w individualized 
basis. The industries within the 
management area will be required to 
control total nitrogen to the best 
available technology levels applica- 
ble to the specific wastestream. For 
the purposes of this strategy, the 
definition of best available technol- 
ogy will be required to be mdividu- 
ally developed for each facility. A 
report must be submitted and ap- 
proved by the Division of Water 
Quality within two years of the ef- 
fective date of this Rule which out- 
lines best available technology for 
their particular site. All existing 
industrial process wastewater dis- 
chargers below Falls Lake Dam with 
a permitted flow of 0.5 MGD or 
greater will receive a quarterly aver- 
age total phosphorus limit of 2 mg/1. 
Expanding industrial process 



wastewater dischargers in the basin 
wiU receive a monthly average total 
phosphorus limit of 1 mg/1. More 
stringent limits may apply to protect 
localized areas, 
(v) All new and expanding wastewater 
dischargers will be required to offset 
their additional nutrient loads by 
funding nonpoint source control 
programs approved by the Division. 
Nitrogen and phosphorus loads shall 
be offset at the rate of 1 10 percent 
of the cost to implement BMPs de- 
signed to reduce that same loading 
created by the new or expanding 
discharge. 

143-214.1; 143-215; 143-215.1; 143- 



Authority G. S. 
215.3(a)(1). 



.0232 >fEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: ILLEGAL DISCHARGES 
MANAGEMENT PLAN 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001 Furthermore, the Commission shall develop and 
adopt a plan to attemp t to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion. 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231. 
.0232. .0233. .0234. .0235 and .0236 of this Section. The 
following is the illegal discharges management strategy for 
the Neuse River Basin: 

All municipalities having a population of 5,000 or greater 
must begin the process of adopting a plan to address illegal 
discharges. Draft plans shall be submitted within two years 
of the effective date of this Rule for approval by the 
Division. The plan must be implemented within five years 
after the effective date of this Rule. At the end of the five 
year time period local government must submit to the 
Division a report that addresses the local implementation 
program's progress of removing existing illegal discharges, 
prevention of additional illegal discharges and an on-going 
inspection program of the storm drainage system to ensure 
prevention and continued removal of illegal discharges. 

Authority G.S. 143-214.1; 143-214.7; 143-215.1; 143- 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



827 



PROPOSED RULES 



215.3(a)(1). 

.0233 >fEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: STORMWATER 
MANAGEMENT 

The Environmental Management Commission hereby 
estabhshes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
a\erage annual load for the period 1991 through 1995 by_ the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify- progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231, 
■0232. .0233. .0234, .0235 and .0236 of this Section. The 
following is the stormwater management strategy for the 
Neuse River Basin: 
Option h 

(1) Development activities which require a Sedimen- 
tation/Erosion Control Plan in accordance with 
G.S. 113A-57. except those development activities 
within the 20 coastal counties as defined in 15A 
NCAC 2H .1002(4), those areas affected b^ a 
WS-I. WS-II, WS-III, WS-IV. ORW or HOW 
classification since these areas already have 
requirements for stormwater management are 
required, at a minimum, to meat the following 
stormwater management requirements: 
(a) Low Density Option: Development activi- 
ties shall be allowed pursuant to 15A 
NCAC 2H ■1003(d)(1) if the development 
has: 
(i) built-upon area of VI percent or less 
or proposes no more than one single 
family residential unit per one acre: 
(ii) stormwater runoff transported pri- 
marily by vegetated conveyance: 
conveyance system shall not include 
a discrete stormwater collection 
system as defined in 15A NCAC 2H 
.1002(18). 
(h) High Density (Dption: Higher density devel- 
opments shall be allowed pursuant to 15A 
NCAC 2H .1003(d)(2) if stormwater con- 
trol systems meet the following criteria: 
ti] stormwater systems must be wet 
detention ponds or alternative storm- 
water management systems designed 
in accordance uith 15A NCAC 2H 



.1008: 
(ii) control systems must be designed to 
control runoff from all surfaces gen- 
erated by one inch of rainfall. 

(2) Redevelopment is allowed if the rebuilding activ- 
ity does not have a net increase in built-upon area 
or provide equal or greater stormwater control 
than the previous development, except that there 
are no restrictions on existing single family 
residential redevelopment. Expansions to struc- 
tures classified as existing development must meet 
the requirements of this Rule: however, the built- 
upon surface area of the existing development is 
not required to be included in the built-upon area 
calculations. Expansions to structures other than 
existing development must meet the built-upon 
area requirements of this Rule for the entire 
project site. 

(3) Cluster development is allowed on a project-by- 
project basis as follows: 

(a) overall density of the project meets associ- 
ated density or stormwater control require- 
ments of this Rule: 

fb) buffers meet the minimum requirements of 
this Rule; 

(c) built-upon areas are designed and located to 
minimize stormwater runoff impact to the 
receiving waters, minimize concentrated 
stormwater flow, maximize the use of sheet 
flow through vegetated areas; and maxi- 
mize the flow length through vegetated 
areas; 

(d) areas of concentrated development are 
located in upland areas and, to the maxi- 
mum extent practical away from surface 
waters and drainage ways; 

(e) remainder of tract to remain in vegetated or 
natural state; 

(f) area in the vegetated or natural state may 
be conveyed to a property owners associa- 
tion; a local government for preser\'ation as 
a park or greenway; a conservation organi- 
zation; or placed in a permanent conserva- 
tion or farmland preservation easement; 

(g) a maintenance agreement for the vegetated 
or natural area shall be filed with the Reg- 
ister of Deeds; and 

(h) cluster development that meets the applica- 
ble low density option requirements shall 
transport stormwater runoff from the devel- 
opment by vegetated conveyances to the 
maximum extent practicable. 
Option 2: 

( 1) In order to address pollutants in stormwater 
runoff associated with development activities 
within the Neuse River Basin, a stormwater 
management program will be established within 



828 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



those areas of the Neuse River Basin that are not 
within the 20 coastal counties as defined in 15A 
NCAC 2H .1002(4). and those areas affected h^ 
a WS-I. WS-n, WS-ffl. WS-IV, ORW or HOW 
classification as of the effective date of this Rule- 
Development activities within the 20 coastal 
counties as defined in 15A NCAC 2H .1002(4). 
and those areas affected by a WS-I. WS-H. WS- 
III. WS-IV. ORW or HOW classification are 
alreadv administering a stormwater management 
program and are exempt from the following 
requirements. However, for areas within the 
Neuse River Basin that are not within the 20 
coastal county defined area or are not affected by 
a WS-I. WS-n. WS-m. WS-IV. ORW and HOW 
classification, then development activities are 
required to have appropriate stormwater manage- 
ment programs in place within three years follow- 
ing the effective date of this Rule. 
(2) A stormwater management program may be 
attained by meeting one of the following: 

(a) All local governments with land use juris- 
diction in those portions of the Neuse River 
Basin not otherwise subject to state storm- 
water management requirements have the 
option of participating collectively with the 
EHvision to review, develop, and establish 
a Neuse River Basin Stormwater Manage- 
ment Plan. This plan will establish the 
minimum requirements for the Stormwater 
Management Program which will include, 
but not be limited to: land use planning 
development density control measures, 
protection of sensitive surface waters and 
resources, use of stormwater management 
control devices, water quality educational 
programs and an implementation and com- 
pliance strategy. The final collective plan 
and management program must be ap- 
proved by the Commission within two 
years following the effective date of this 
Rule. Following the Commission's ap- 
proval of the Neuse River Basin Storm- 
water Management Plan, a local govern- 
ment may request that the Commission 
delegate authority to the local government 
to implement the plan; or 

(b) If a local government fails to request that 
the Commission delegate authority to the 
local government to implement their por- 
tion of the collective plan within their 
jurisdiction then the Division will, at a 
minimum, implement the following storm- 
water management requirements: 

(i) Low Density Option: Development 
activities shall be allowed pursuant 
to 15A NCAC 2H .1003(d)(1) if the 



development has: 

(A) built-upon area of 24 percent 
or less or pro poses no more 
than one single family resi- 
dential unit ger one-half acre; 

(B) stormwater runoff transported 
primarily by vegetated con- 
veyances: conveyance system 
shall not include a discrete 
stormwater collection system 
as defined in 15A NCAC 2H 
.1002(18). 

(ii) High Density Option: Higher density 
developments shall be allowed pur- 
suant to 15A NCAC 2H .1003(d)(2) 
if stormwater control systems meet 
the following criteria: 

(A) stormwater systems must be 
wet detention ponds or alter- 
native stormwater manage- 
ment systems designed in ac- 
cordance with 15 A NCAC 2H 
■ 1008; 

(B) control systems must be de- 
signed to control runoff from 
all surfaces generated by one 
inch of rainfall. 

(3) Redevelopment is allowed if the rebuilding activ- 
ity does not have a net increase in built-upon area 
or provides equal or greater stormwater control 
than the previous development, except that there 
are no restrictions on existing single family 
residential redevelopment. Expansions to struc- 
tures classified as existing development must meet 
the requirements of Sub-Item (DOj) of this Rule; 
however, the built-upon surface area of the exist- 
ing development is not required to be included in 
the built-upon area calculations. Expansions to 
structures other than existing development must 
meet the built-upon area requirements of Sub-Item 
(a)(ii) of this Rule for the entire project site. 

(4) Cluster development is allowed on a project-by- 
project basis as follows; 

(a) overall density of the project meets associ- 
ated density or stormwater control require- 
ments of this Section; 

(b) buffers meet the minimum requirements of 
this Rule; 

(c) built-upon areas are designated and located 
to minimize stormwater runoff impact to 
the receiving waters, minimize concentrated 
stormwater flow, maximize the use of sheet 
flow through vegetated areas; and maxi- 
mize the flow length through vegetated 
areas; 

(d) areas of concentrated development are 
located in upland areas and, to the maxi- 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



829 



PROPOSED RULES 



m 



(gi 



OD 



Authority G. S. 

215.3(a)(1). 



mum extent practical, away from surface 
waters and drainways; 
remainder of tract to remain in vegetated or 
natural state; 

area in the vegetated or natural state may 
be conveyed to a property owners associa- 
tion; a local government for preservation as 
a park or greenway; a conservation organi- 
zation; or placed in a permanent conserva- 
tion or farmland preservation easement; 
a maintenance agreement for the vegetated 
or natural area shall be filed with the Reg- 
ister of Deeds; and 

cluster development that meets the applica- 
ble low density option requirements shall 
transport stormwater runoff from the devel- 
opment by vegetated conveyances to the 
maximum extent practicable. 

143-214.1; 143-214.7; 143-215.1; 143- 



.0234 NEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: ANIMAL WASTE 
MANAGEMENT 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion. 15A NCAC 2B .0223. The management requirements 
are specified in Rules .0231, .0232, .0233. .0234, .0235 
and .0236 of this Section. The following is the animal 
waste management strategy for the Neuse River Basin: 
Option h 

( 1) Animal waste management systems, as defined in 
15A NCAC 2H .0203(3), shall require a permit, 
pursuant to ISA NCAC 2H .0217 and 2H 
.0203(4), from the Division as follows: 
(a) Systems considered deemed permitted: 

(i) swine systems designed for less than 

500 animals; 
(ii) cattle systems designed for less than 

250 animals; 
(iii) poultry systems (liquid systems) 
designed for less than 75,000 birds; 
and 



(iv) poultry systems (dry litter opera- 
tions) which meet the criteria of 15A 
NCAC 2H .0217. 
fb) Systems permitted under General Permit 
ri5A NCAC 2H .0217rb)1: 
(i) swine systems designed for 500 

animals up to 4.999 animals; 
(ii) cattle systems designed for 250 ani- 
mals up to 999 animals; and 
(iii) poultry systems (liquid systems) 
designed for 75,000 birds up to 
149.999 birds, 
(c) Systems permitted under individual per- 
mits: 

swine systems designed for 5.000 or 
more animals; 



£11 
Oil 
(iii) 



cattle systems designed for l.CKX) or 
more animals; and 
poultry systems (liquid systems) 
designed for 150,000 birds or more. 

(d) The Director may determine that a system 
should not be deemed to be permitted in 
accordance with Rule 15A NCAC 2H 
■ 0217 and require the system to obtain a 
general or an individual nondischarge 
permit. This determination shall be made 
based on existing or projected environmen- 
tal impacts. 

(e) The Director may determine that a system 
should not have a general permit and re- 
quire the system to obtain an Individual 
nondischarge permit. This determination 
shall be made based on existing or pro- 
jected environmental impacts. 

(2) A 25 foot setback is required along all open 
drainage ditches for spraying and land application 
of animal waste- 
Option 2: 

(1) Animal waste management systems, as defined in 
15A NCAC 2H .0203(3), shall require a permit, 
pursuant to I5A NCAC 2H .0217 and 2H 
.0203(4). from the Division as follows: 

(a) Systems considered deemed permitted: 

(i) swme systems designed for less than 
250 animals; 

(ii) cattle systems designed for less than 
100 animals; 

(iii) poultry systems (liquid systems) 
designed for less than 30.CKX) birds; 
and 

(iv) poultry systems (dry litter opera- 
tions) which meet the criteria of 15A 
NCAC 2H .0217. 

(b) Systems permitted under General Permit 
ri5A NCAC 2H .0217(^3)1: 

(i) swine systems designed for 250 or 
more animals; 



830 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



(ii) cattle systems designed for 100 or 

more animals; and 
(m) poultry systems (liquid systems) 
designed for 30.000 or more birds. 

(c) The Director may determine that a system 
should not be deemed to be permitted in 
accordance with Rule 15A NCAC 2H 
.0217 and require the system to obtain a 
general permit under Sub-Item (vi)(B) of 
this Rule or an indiyidual nondischarge 
permit. This determination shall be made 
based on existing or projected environmen- 
tal impacts. 

£d} The Director may determine that a system 
should not have a general permit under 
Sub-Item (vi)(B) of this Rule and require 
the system to obtain an individual 
~ nondischarge permit. This determination 

shall be made based on existing or pro- 
jected environmental impacts. 
£2} A 25 foot setback is required along all open 

drainage ditches for spraying and land application 

of animal waste. 

Authority G.S. 143-214.1; 143-215.1; 143-215. 3(a); 143- 
215. IOC. 

.0235 NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: BUFFERS 

The Environmental Management Commission hereby 
estabUshes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy a pplies to die entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion. 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231. 
.0232. .0233. .0234. .0235 and .0236 of this Section. The 
following is the management strategy for buffers in the 
Neuse River Basin: 
Option !_: 

(1) A forested riparian buffer in accordance with Sub- 
Items (2)(a)-(e) of this Rule is required on both 
sides of perennial and intermittent surface waters 
in the Neuse River Basin. Exceptions to the 
requirements of this Rule are described in Sub- 
Items (l)(e)(i)-(ix) of this Rule. Design and 
installation of the buffer should be such that, to 



the maximum extent possible, sheet flow of 
surface water is achieved. Any activities that 



would result in water quality standard violations 
or shall disrupt the structural or functional integ- 
rity of the buffer are prohibited. The following 
criteria will be used to determine which 
waterbodies are subject to the buffer requirement: 
(a) Surface waters indicated as "blue lines " on 
the most recent versions of U.S.G.S. 
1:24.000 scale (7.5 minute quadrangle) 
topographic maps are subject to the buffer 
requirements. Waterbodies subject to the 
buffer requirements include perennial and 
intermittent streams, canals and other 
manmade drainage conveyances, lakes, and 
estuaries. 
£b} In instances where the U.S.G.S. 1:24.000 
scale (7.5 minute quadrangle) topographic 
maps inaccurately depict streams or other 
water conveyance channels or ditches, the 
following descriptive criteria shall be used 
to determine where a buffer is required: 
(i) All perennial and intermittent 
streams which have a defined stream 
channel formed through concentra- 
tion of runoff are subject to the 
buffer requirement, 
(ii) Channelized or otherwise modified 
natural streams are subject to the 
buffer requirement. 
(iii) Ditches or manmade conveyances 
which under normal conditions re- 
ceive drainage waters from one or 
more tributary ditches, canals, or 
streams are subject to the buffer 
requirement unless exempted through 
the use of water control structures 
and nutrient management as de- 
scribed in Sub-Item (e)(vi) of this 
Rule. 

(c) The Environmental Management Commis- 
sion may provide a matrix of options for 
landowners to achieve equivalent water 
quality protection through alternative Best 
Management Practices which account for 
regional variations in soil types and topog- 
raphy. 

(d) The Directors of the Division of Water 
Quality. Division of Soil and Water Con- 
servation. Natural Resources Conservation 
Service, and Cooperative Extension Service 
shall appoint an advisory committee to 
make site-specific determinations of where 
the buffer requirements apply and alterna- 
tives for providing equivalent protection. 
The Committee shall be consulted when the 
methods of determination described above 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



831 



PROPOSED RULES 



are inadequate for a particular site. Land- 
owners and consultants are allowed to 
propose site-specific determinations for 
review by the appointed committee, 
(e) The following waterbodies and land uses 
are exempt from the buffer requirement: 
(i) Ditches or manmade conveyances 
other than modified natural streams 
which under normal conditions do 
not receive drainage waters from any 
tributary ditches, canals, or streams, 
unless the ditch or manmade convey- 
ance delivers runoff directly to wa- 
ters classified in accordance with 
15A NCAC 2B .0100. 
(ii) Ditches or manmade conveyances 
other than modified natural streams 
which are used exclusively for drain- 
age of silvicultural land or naturally 
forested areas. All forest harvesting 
operations shall be in compliance 
with North Carolina's Forest Prac- 
tices Guidelines Related to Water 
Quality, 
(iii) Ponds and lakes created for animal 
watering, irrigation, or other agricul- 
tural uses that are not part of a natu- 
ral drainage way that is classified in 
accordance with 15A NCAC 2B 
.0100. 
(iv) Development activities that have 
received an approved Sedimenta- 
tion/Erosion Control Plan prior to 
the effective date of this Rule, and 
development activities for which a 
Sedimentation/Erosion Control Plan 
was not required but for which lots 
were platted and recorded prior to 
the effective date of this Rule are 
exempt. However, landowners are 
encouraged to meet the minimum 
buffer requirements of this Rule, and 
to maintain existing forested buffers 
to the maximum extent practical, 
without compromising the functions 
and integrity of any existing perma- 
nent structures and facilities. 
£v} New development in the buffer shall 
be limited to water dependent struc- 
tures as defined in 15A NCAC 2B 
.0202. Any structures shall be lo- 
cated, designed, constructed and 
maintained to provide maximum 
nutrient removal, to have the least 
adverse effects on aquatic life and 
habitat and to protect water quality, 
(vi) Canals, ditches, and other drainage 



(vii) 



lYiii} 



£ix} 



conveyances are exempt from the 
riparian buffer requirement if both 
water control structures with a water 
management plan and a nutrient 
management plan are implemented 
on the adjacent agricultural land 
according to the standards and speci- 
fications of the USDA ; Natural 
Resources Conservation Service or 
the standards and specifications 
adopted by the NC Soil and Water 
Conservation Commission. The 
water control structures and nutrient 
management practices must provide 
equivalent protection and directly 
affect the land and waterbodies 
draining into the waterbody ex- 
empted from the buffer requirement. 
To the maximum extent practical, 
water control structures should be 
managed to maximize nitrogen re- 
moval throughout the year. Written 
approval from the local Soil and 
Water Conservation District must be 
obtained for the land certifying that 
a ppropriate nutrient management and 
water management plans have been 
developed. If the nutrient manage- 
ment plans and water management 
plans are not implemented then a 
buffer pursuant to this Section is 
required. 

Roads, bridges, stormwater manage- 
ment facilities, ponds, and utilities 
may be allowed where no practical 
alternative exists. These structures 
shall be located, designed, con- 
structed, and maintained to have 
minimal disturbance, to provide 
maximum nutrient removal and ero- 
sion protection, to have the least 
adverse effects on aquatic life and 
habitat, and to protect water quality 
to the maximum extent practical 
through the use of Best Management 
Practices. 

Stream restoration projects, scientific 
studies, stream gauging, water wells, 
passive recreation facilities such as 
boardwalks, trails, pathways, his- 
toric preservation and archaeological 
activities are permitted. 
Stream crossings associated with 
timber harvesting are permitted if 
performed in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (15A NCAC LJ 



832 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



■0201-.0209). 
(f) The following are modifications to the 

riparian forest buffer system. 
(i) On agricultural land where either 
water control structures with a water 
management plan, or a nutrient man- 
agement plan is implemented accord- 
ing to the standards and specifica- 
tions of the USDA ; Natural Re- 
sources Conservation Service or the 
standards and specifications adopted 
by die NC Soil and Water Conserva- 
tion Commission, then a 20-ft for- 
ested or a 30-ft vegetated buffer is 
required. The water control struc- 
tures or nutrient management prac- 
tices must provide equivalent protec- 
tion and directly affect the land and 
waterbodies draining into the 
waterbody with a modified buffer 
requirement. To the maximum ex- 
tent practical . water control struc- 
tures should be managed to maxi- 
mize nitrogen removal throughout 
the year. 

(ii) Periodic maintenance of drainage 
channels, canals, and ditches is al- 
lowed provided that disturbance is 
minimized and the structure and 
function of the buffer is not compro- 
mised. A grassed travelway is al- 
lowed on one or both sides of the 
waterbody when alternative forms of 
maintenance access are not practical. 
The width and specifications of the 
travelway shall be only that needed 
for equipment access and operation. 
The travelway should be located to 
maximize stream shading (i.e.. lo- 
cated on the north and/or east side 
of the channel if possible). Channel 
and canal maintenance techniques 
may include the use of winches, 
backhoes, booms and logging 
skidders. Drag lines should only be 
used for large channels where less 
damaging maintenance techniques 
are not feasible. Any material re- 
moved from the channel shall be 
spread in a manner that does not 
compromise the water quality func- 
tions of the buffer and maintenance 
of appropriate vegetative cover. 

(111) A vegetated buffer may be substi- 
tuted for an equivalent width of for- 
ested buffer within 100 feet of tile 
drainage. 



(iv) Where the buffer requirements 
would result in an unavoidable loss 
of tobacco allotments |7 CPU 
723.220(c')1 and the BMPs of con- 
trolled drainage or nutrient manage- 
ment are not in place, forest cover is 
required in Zone 1^ only. The re- 
maining 30 feet of the buffer must 
meet the requirements for Zone 3^ 
(2) The buffer shall have three zones as follows: 

(a) Zone 1 begins at the normal waterline or at 
the upper edge of the active channel of the 
surface waterbody and extends landward a 
distance of 20 feet, measured horizontally 
on a line perpendicular to the waterbody. 
Dominant vegetation shall consist of exist- 
ing or planted trees and shrubs with a 
dense ground cover. For those sites where 
forest vegetation does not exist, it is ac- 
ceptable to allow the forest buffer to suc- 
ceed naturally to a wooded state. Any 
plantings shall primarily consist of locally 
native trees and shrubs. Zone I is intended 
to remain in an undisturbed state, however 
the following practices and activities are 
allowed in Zone 1: 



111 



liil 



(ml 



£iy} 



Selective removal of high value trees 
is allowed where water quality val- 
ues are not compromised. Timber 
removal can contribute to removal of 
nutrients sequestered in stems and 
branches and maintain nutrient up- 
take and vigorous growth. Skidding 
of trees shall be directed away from 
any water course or water body. 
Skidding shall be done in a manner 
to prevent creation of ephemeral 
channels perpendicular to the 
waterbody. Limited mechanized 
equipment is allowed in this area. 
Any tree removal must be performed 
in a manner that does not compro- 
mise the intended purpose of the 
buffer and is in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (ISA NCAC U 
.0201 -.0209); 

Horticulture practices may be used 
to maintain the health of individual 
trees: 



Individual trees may be removed 
which are in danger of causing dam- 
age to dwellings, other structures, or 
the stream channel: and 
Other timber cutting techniques ap- 
proved by the Department may be 
undertaken if necessary to prevent 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



833 



PROPOSED RULES 



extensive 



or disease infestation. 



practices and activities are not allowed: 



£b) Zone 2i begins at the outer edge of Zone 1 
and extends landward a minimum of 20 
feet as measured horizontally on a line 
perpendicular to the waterbody. The com- 
bined minimum width of Zones 1 and 2 
shall be 40 feet. Dominant vegetation shall 
consist of existing or planted trees and 
shrubs with a dense ground cover. For 
those sites where forest vegetation does not 
exist it is acceptable to allow the forest 
buffer to succeed naturally to a wooded 
state. TTie following practices and activi- 
ties are allowed in Zone 2 in addition to 
those allowed in Zone \^ Removal of tree 
and shrub products such as timber, nuts, 
and fruit is permitted on a periodic and 
regular basis pro\ided the intended purpose 
is not compromised by loss of vegetation or 
harvesting disturbance. A minimum of 40 
percent canopy cover on a ^er acre basis 
must be maintained. Timber removal and 
skidding of trees shall be directed away 
from the water course or waterbody. 
Skidding shall be done in a manner to 
prevent creation of ephemeral channels 
perpendicular to the waterbody. Any tree 
removal must be performed in a manner 
that does not compromise the intended 
purpose of the buffer and is in accordance 
with the Forest Practices Guidelines Re- 
lated to Water Quality (15A NCAC U 
.0201-. 0209). Forest vegetation may be 
managed to minimize shading on adjacent 
land if the water quality function of the 
buffer is not compromised; 

(c) Zone 3: begins at the outer edge of Zone 2 
and extends landward a minimum of 10 
feet as measured horizontally on a line 
perpendicular to the waterbody. Tlie com- 
bined minimum width of Zones \^ 2 and 3 
shall be 50 feet. Vegetation shall be com- 
posed of dense grasses and forbs or exist- 
ing forest vegetation. Vegetation must 
consist of a dense ground cover and be 
maintained in a vigorous condition. Resi- 
dential and commercial lawns meet the 
Zone 3 requirements as long as they are 
maintained and protected in accordance 
with these specifications. If existing wood- 
land extends beyond the minimum 50 foot 
buffer width, the existing forest vegetation 
may be used to meet the Zone 3 width 
requirement. However, a minimum 10 
foot managed grass strip is recommended 
adjacent to agricultural fields with a slope 
greater than 2 percent. TTie following 



(i) New permanent structures; 

(ii) New on-site sanitary sewage systems 
which use ground absorptions; 

(iii) Activities that would result in water 
quality standards violations or shall 
disrupt the structural or functional 
integrity of the buffer are prohibited. 

(d) Operation and maintenance of Zones \^ 2 
and 3 is required. The buffers should be 
inspected by the landowner periodically and 
immediately following severe storms for 
evidence of sediment deposit, erosion or 
concentrated surface flow chaimels. Sheet 
flow must be maintained through dispersing 
concentrated flows, periodic reshaping of 
earth structures, removal or grading of 
accumulated sediment, or re-establishment 
of vegetation to maintain effectiveness of 
the buffer. Prompt corrective action must 
be taken by the landowner to stop erosion 
and restore sheet flow. 

(e) Removal or disturbance of vegetation or 
groundcover inconsistent with erosion 
control and buffering objectives is not 
allowed within the buffer. 

tree (3) The buffer shall be established on agricultural 

land within two years of the effective date of this 
Rule. 

(4) Where the standards and management require- 
ments for forest buffers are in conflict with other 
laws, regulations, permits and policies regarding 
streams, steep slopes, erodible soils, wetlands, 
floodplains. forest harvesting, surface mining, 
land disturbance activities, development in Coastal 
Area Management Act Areas of Environmental 
Concern, or other environmental protection areas, 
the more protective shall apply so long as they are 
in effect. If other standards and requirements 
which provide equal or better protection than the 
forested buffer are no longer in effect then the 
buffer requirements of this Rule shall apply. 

(5) Local government programs approved by the 
Director of the Division of Water Quality may be 
allowed to implement and manage the riparian 
buffer requirement within their jurisdictions. 

Option 2: 

( 1 ) A vegetated riparian buffer is required on both 
sides of perennial and intermittent surface waters 
in the Neuse River Basin. Exceptions to the 
requirements of this Rule are described in Sub- 
Items (l)(e)(i)-(ix). Design, installation, and 
maintenance of the buffer shall be such that, to 
the maximum extent practical, sheet flow of 
surface water is achieved. Any activities that will 
result in water quality standard violations or 
impair the structural or functional integrity of the 



834 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



buffer are prohibited. The following criteria will 
be used to determine which waterbodies are 
subject to the buffer requirement: 
(a) Surface waters indicated as "blue lines" on 
the most recent versions of U.S.G.S. 
1:24.000 scale (7.5 minute quadrangle) 
topographic maps are subject to the buffer 
requirements. Waterbodies subject to the 
buffer requirements include perennial and 
intermittent streams, canals and other 
manmade drainage conveyances, lakes, and 
estuaries. 
£bl In instances where the U.S.G.S. 1:24.000 
scale (7.5 minute quadrangle) topographic 
maps inaccurately depict streams or other 
water conveyances, channels or ditches, the 
following descriptive criteria shall be used 
to determine where a buffer is required: 
£i} All perennial and intermittent 
streams which have a defined stream 
channel formed through concentra- 
tion of runoff are subject to the 
buffer requirement, 
(ii) Channelized or otherwise modified 
natural streams are subject to the 
buffer requirement, 
(iii) Ditches or manmade conveyances 
which under normal conditions re- 
ceive drainage waters from one or 
more tributary ditches, canals, or 
streams are subject to the buffer 
requirement unless exempted through 
the use of water control structures 
and nutrient management as de- 
scribed in Sub-Item (l)(e)(yi) of this 
Rule. 

(c) The Environmental Management Commis- 
sion may provide a matrix of options for 
landowners to achieve equivalent water 
quality protection through alternative Best 
Management Practices which account for 
regional variations in soil types and topog- 
raphy. 

(d) The Directors of the Division of Water 
Quality, Division of Soil and Water Con- 
servation. Natural Resources Conservation 
Service, and Cooperative Extension Service 
shall appoint an advisory committee to 
make site-specific determinations of where 
the buffer requirements apply and alterna- 
tives for providing equivalent protection. 
The Committee shall be consulted when the 
methods of determination described above 
are inadequate for a particular site. Land- 
owners and consultants are allowed to 
propose site-specific determinations for 
review by the appointed committee. 



(e) The following waterbodies and land use are 
exempt from the buffer requirement: 
(i) Ditches or manmade conveyances 
other than modified natural streams 
which under normal conditions do 
not receive drainage waters from any 
tributary ditches, canals, or streams, 
unless the ditch or manmade convey- 
ance delivers runoff directly to wa- 
ters classified in accordance with 
15A NCAC 2B .0100. 
(ii) Ditches or manmade conveyances 
other than modified natural streams 
which are used exclusively for drain- 
age of silvicultural land or naturally 
forested areas. All forest harvesting 
operations shall be in compliance 
with North Carolina's Forest Prac- 
tices Guidelines Related to Water 
Quality. 

Ponds and lakes created for animal 
watering, irrigation, or other agricul- 
tural uses that are not part of a natu- 
ral drainage way that is classified in 
accordance with 15A NCAC 2B 
.0100. 



(iii) 



(iv) 



(Yl 



(vi) 



Development activities that have 
received an a pproved Sedimenta- 
tion/Erosion Control Plan prior to 
the effective date of this Rule, and 
development activities for which a 
Sedimentation/Erosion Control Plan 
was not required but for which lots 
were platted and recorded prior to 
the effective date of this Rule are 
exempt. However, landowners are 
encouraged to meet the minimum 
buffer requirements of this Rule, and 
to maintain existing forested buffers 
to the maximum extent practical, 
without compromising the functions 
and integrity of any existing perma- 
nent structures and facilities. 
New development in the buffer shall 
be limited to water dependent struc- 
tures as defined m fSA NCAC 2B 
.0202(59). Any structures shall be 
located, designed, constructed and 
maintained to provide maximum 
nutrient removal, to have the least 
adverse effects on aquatic life and 
habitat and to protect water quality. 
Landowners are encouraged to main- 
tain existing forested buffers to the 
maximum extent practical. 
Canals, ditches, and other drainage 
conveyances are exempt from the 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



835 



PROPOSED RULES 



riparian buffer requirement if both 
water control structures with a water 
management plan and a nutrient 
management plan are implemented 
on the adjacent agricultural land 
according to the standards and speci- 
fications of the USDA- Natural Re- 
sources Conservation Service or the 
standards and specifications adopted 
by the NC Soil and Water Conserva- 
tion Commission. The water control 
structures and nutrient management 
practices must provide equivalent 
protection and directly affect the 
land and waterbodies draining into 
the waterbody exempted from the 
buffer requirement. To the maxi- 
mum extent practical, water control 
structures should be managed to 
maximize nitrogen removal through- 
out the year. Written approval from 
the local Soil and Water Conserva- 
tion District must be obtained for the 
land certifying that appropriate nutri- 
ent management and water manage- 
ment plans have been developed. If 
the nutrient management plans and 
water management plans are not 
implemented, then a buffer pursuant 
to this Section is required, 
(vii) Roads, bridges, stormwater manage- 
ment facilities, ponds, and utilities 
may be allowed where no practical 
alternatives exists. TTiese structures 
shall be located, designed, con- 
structed, and maintained to have 
minimal disturbance, to provide 
maximum nutrient removal and ero- 
sion protection, to have the least 
adverse effects on aquatic life and 
habitat, and to protect water quality 
to the maximum extent practical 
through the use of best management 
practices, 
(viii) Stream restoration projects, scientific 
studies, stream gauging, water wells, 
passive recreation facilities such as 
boardwalks, trails, pathways, his- 
toric preservation and archaeological 
activities are permitted, 
fix) Stream crossings associated with 
timber harvesting are permitted if 
performed in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (15A NCAC U 
.0201-. 0209). 
(f) The following are modifications to the 



vegetated buffer system. 
(i) On agricultural land where either a 
water control structure with a water 
management plan, or nutrient man- 
agement plan is implemented accord- 
ing to the standards and specifica- 
tions of the USDA ; Natural Re- 
sources Conservation Service or the 
standards and specifications adopted 
by the NC Soil and Water Conserva- 
tion Commission, then a 20-foot 
forested or a 30-foot vegetated 
buffer is required. The water con- 
trol structures or nutrient manage- 
ment practices must provide equiva- 
lent protection and directly affect the 
land and waterbodies draining into 
the waterbody with a modified 
buffer requirement. To the maxi- 
mum extent practical, water control 
structures should be managed to 
maximize nitrogen removal through- 
out the year. 

(ii) A 30-foot forested buffer may be 
substituted in Ueu of the requirement 
for 50 feet of vegetated buffer. 
Dominant vegetation shall consist of 
existing or planted trees and shrubs 
with a dense ground cover. For 
those sites where forest vegetation 
does not exist, it is acceptable to 
allow the forest buffer to succeed 
naturally to a wooded state. Selec- 
tive removal of tree and shrub prod- 
ucts such as timber, nuts, and fruit 
is permitted provided the intended 
purpose is not compromised by loss 
of vegetation or harvesting distur- 
bance. 
(iii) Periodic maintenance of drainage 
channels, canals, and ditches is al- 
lowed provided that disturbance is 
minimized and the structure and 
function of the buffer is not compro- 
mised. A grassed travelway is al- 
lowed on one or both sides of the 
waterbody when alternative forms of 
maintenance access are not practical. 
The width and specifications of the 
travelway shall be only that needed 
for equipment access and operation. 
The travelway should be located to 
maximize stream shading (i.e.. lo- 
cated on the north and/or east side 
of the channel if possible). Channel 
and canal maintenance techniques 
may include the use of winches, 



836 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



backiioes, booms, and logging 
skidders. Drag lines should only be 
used for large channels where less 
damaging maintenance techniques 
are not feasible. Any material re- 
moved from the channel shall be 
spread in a manner that does not 
compromise the water quality func- 
tions of the buffer and maintenance 
of appropriate vegetative cover. 

(2) The vegetated buffer begins at the normal water- 
line or at Ae upper edge of the active channel of 
the surface waterbody and extends landward a 
distance of 50 feet, measured horizontally on a 
line perpendicular to the waterbody. 

(3) Vegetation shall be composed of dense grasses 
and forbs or forest vegetation. Vegetation must 
consist of a dense ground cover and be maintained 
in a vigorous condition. Lawns meet the buffer 
requirements as long as they are maintained and 
protected in accordance with these specifications. 
Landowners are encouraged to maintain existing 
forested buffers to the maximum extent practical. 

(4) The following practices and activities are not 
allowed: 

(a) New permanent structures; 

fb) New on-site sanitary sewage systems which 

use ground absorption: 
(c) Removal or disturbance of vegetation or 

ground cover inconsistent with erosion 

control and buffering objectives is not 

allowed within the buffer. 

(5) Maintenance of buffers is required. Sheet flow 
must be maintained to die maximum extent practi- 
cal through dispersing concentrated flows, peri- 
odic reshaping of earth structures, removal or 
grading of accumulated sediment, or re-establish- 
ment of vegetation to maintain effectiveness of the 
buffer. Corrective action should be taken by the 
landowner to stop erosion and restore sheet flow. 
Timber removal can contribute to removal of 
nutrients sequestered in stems and branches and to 
maintain nutrient uptake and vigorous growth. 
Skidding of trees shall be directed away from any 
water course or waterbody when practical. 
Skidding shall be done in a manner to prevent 
creation of ephemeral channels perpendicular to 
the waterbody. Any tree removal must be per- 
formed in a manner that does not compromise the 
intended purpKjse of the buffer and in accordance 
with the Forest Practices Guidelines Related to 
Water Quality (15A NCAC IJ .0201-. 0209V 

(6) The buffer shall be established on agricultural 
land within 2 years of the effective date of this 
Rule. 

(7) Where the standards and management require- 
ments for vegetated buffers are in conflict with 



other laws, regulations, permits and policies 
regarding streams, steep slopes, erodible soils, 
wetlands, floodplains. forest harvesting, surface 
mining, land disturbance activities, development 
in Coastal Area Management Act Areas of Envi- 
ronmental Concern, or other environmental 
protection areas, the more protective shall apply 
so long as they are in effect. If other standards 
and requirements which provide equal or better 
protection than the vegetated buffer are no longer 
in effect, then the buffer requirements of this Rule 
shall apply. 
(8) Local government programs approved by the 
Director of the Division of Water Quality may be 
allowed to implement and manage the riparian 
buffer requirement within their jurisdictions. 

Authority G.S. 143-214.1; 143-214.7; 143-215. 3(a)(1). 

.0236 NEUSE RTVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: NUTRIENT MANAGEMENT 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 200L Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning a ppropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) Classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231, 
.0232, .0233. .0234, .0235 and .0236 of this Section. The 
following is the management strategy for nutrient manage- 
ment in the Neuse River Basin: 
Option ii 

(1) Nutrient management plans shall be developed and 
implemented within two years of the effective date 
of this Rule for the following areas: 

(a) Cropland and pasture land under individual 
ownership or lease agreements where nutri- 
ents are applied and the land owned or 
leased is greater than or equal to 250 acres: 

(b) Contiguous tracts of agricultural land under 
multiple ownership which together com- 
prise a total area receiving nutrients of 
greater than or equal to 250 acres: 

(2) The plan shall meet the standards and specifica- 
tions of the USDA ; Natural Resources Conserva- 
tion Service or the standards and specifications 
adopted by the NC Soil and Water Conservation 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



837 



PROPOSED RULES 



Commission. The landowner is responsible for 
development of the nutrient management plan. 
Upon written agreement between the landowner 
and the leasee, responsibility and liability for 
proper development and implementation of the 
nutrient management plan may be transferred 
from the landowner to the leasee. The nutrient 
management plan along with supporting docu- 
ments must be kept on-site. For agricultural land, 
written approval from the local Soil and Water 
Conservation District must be obtained for the 
land certifying that an appropriate nutrient man- 
agement plan has been developed. 
Option 2: 

(1) Nutrient management plans shall be developed and 
implemented within two years of the effective date 
of this Rule for the following areas: 

(a) Cropland and pasture land under individual 
ownership or lease agreements where nutri- 
ents are applied and the land owned or 
leased is greater than or equal to 250 acres; 

Co) Contiguous tracts of agricultural land under 
multiple ownership which together com- 
prise a total area receiving nutrients of 
greater than or equal to 250 acres; 

(c) Private and public recreational land where 
nutrients are applied to an area greater than 
or equal to 10 acres: 

(d) Land receiving nutrients applied by com- 
mercial applicators. 

(2) Agricultural nutrient management plans shall meet 
the standards and specifications of the USDA ; 
Natural Resources Conservation Service or the 
standards and specifications adopted by the NC 
Soil and Water Conservation Commission. The 
nutrient management plan along with supporting 
documents must be kept on-site. For agricultural 
land, written approval from the local Soil and 
Water Conservation District must be obtained for 
the land certifying that an appropriate nutrient 
management plan has been developed. The 
landowner is responsible for development of the 
nutrient management plan except for turfgrass and 
non-agncultural areas receiving nutrients applied 
by commercial applicators. Upon written agree- 
ment between the landowner and the leasee, 
responsibility and liability for proper development 
and implementation of the nutrient management 
plan may be transferred from the landowner to the 
leasee. The commercial applicators shall be 
responsible for developing generic nutrient man- 
agement plans for varying turfgrass and horticul- 
tural application scenarios. The standards and 
specifications of nutrient management plans for 
turfgrass. horticultural, and non-agricultural 
application of nutrients shall be developed and 
approved by the Division of Water Quality in 



consultation with the Natural Resources Conserva- 
tion Service, the Division of Soil and Water 
Conservation, the North Carolina Department of 
Agriculture, and the Cooperative Extension 
Service. 

Authority G.S. 143-214. 1; 143-214.7; 143-215. 3(a)(1). 



TITLE 17 - DEPARTMENT OF REVENUE 



N 



otice is hereby given that the Department of Revenue 
intends to amend rules cited as 17 NCAC IC .0506. 



Editor's Note: G.S. 150B-l(d)(4) exempts the Department 
of Revenue from Part 2 Article 2A of Chapter 150 with 
respect to the notice and hearing requirements. The 
Department will however publish the text of proposed rules 
in the North Carolina Register prior to the scheduled time of 
review by the Rules Review Commission. 

Proposed Effective Date: March 1, 1997 

Reason for Proposed Action: This Rule is being amended 

to allow taxpayers remitting sales and use taxes other than 
on a semi-monthly basis the opportunity to participate in the 
EFT Program. 

Comment Procedures: Written public comment should be 
addressed to Jack L. Harper, Assistant Secretary for Tax 
Administration, PO Box 871, Raleigh, NC 27602-0871. 
Comments nmst be received by September 16, 1996. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINISTRATION 

SECTION .0500 - FORM OF PAYMENT 

.0506 VOLUNTARY EFT PROGRAM 
PARTICIPATION 

(a) The following taxpayers not subject to remittance 
provisions of 17 NCAC IC .0504 may elect to participate 
in the EFT Program on or after January 1. 1995: 

(1) Taxpayers required to file returns and pay With- 
holding of Income Taxes from wages of individu- 
als under Article 4A. 

(2) Taxpayers required to remit installment payments 
of Estimated Corporate Income Tax under G.S. 
105 Article 4C. 

(3) Taxpayers who remit Alcoholic Beverage Excise 
Taxes payable under G.S. 105 Article 2C. 



838 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



PROPOSED RULES 



(4) Taxpayers who remit Utility Sales Tax payable 
under the provisions of G.S. 105-164.4(a)(4c). 

(5) Taxpayers who remit Utility Franchise Tax 
payable under G.S. 105-116 or G.S. 105-120, 
excluding telephone companies who remit less 
than three thousand dollars ($3,000.00) per 
month. 

(6) Taxpayers who remit aro dirootod by tho Socro 
tnry or voluntcor to file roportg for Sales and Use 
Tax on a o e mi monthly baoio under G.S. 105- 
164.16(b). 

(7) Taxpayers who remit Motor Fuels Taxes levied 
under G.S. 105 Article 36C and 36D. 

(8) Taxpayers who remit Tobacco Products Tax 
levied under G.S. 105 Article 2A. 

(9) Taxpayers who remit Soft Drink Tax levied under 
G.S. 105 Article 2B. 

(10) Taxpayers who remit Insurance Taxes levied 
under Chapter 105 Article 8B. 

(b) Taxpayers electing to voluntarily participate in the 
EFT Program must complete and return Form 
AC-EFT- lOOV, Electronic Funds Transfer Authorization 
Agreement for Voluntary Participants. 

(c) Taxpayers who elect to participate in the EFT 
Program shall be required to remit payments electronically 
for a minimum of 12 consecutive months. A taxpayer may 
withdraw from the EFT Program after 12 months by giving 
the Department 45 days written notice. 

(d) Taxpayers who elect to participate in the EFT 
Program shall be subject to the penalty provisions stated in 
G.S. !05-236(la) and (lb). 

(e) Taxpayers electing to participate in the EFT Program 
shall be subject to the same rules as taxpayers subject to the 
remittance provisions of 17 NCAC IC .0504. 

Authority G.S. 105-236; 105-241; 105-262. 



Reason for Proposed Action: 

21 NCAC 60 .0204 - Describes transport refrigeration 

examination and requires an applicant to repeat only failed 

portions of the examination. 

21 NCAC 60 .0207 - Establish requirements to sit for the 

transport refrigeration examination. 

21 NCAC 60 .0314 - Clarifies circumstance under which a 

refrigeration contractor's license is required. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rules by mailing the 
comments to Barbara Nines, PO Box 10666, Raleigh, NC 
27605, by September 16, 1996. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SECTION .0200 - EXAMEVATIONS 

.0204 SCORING EXAMINATIONS 

(a) Commercial refrigeration contractor examinations are 
divided into four parts, "A," "B," "C" and "D." Transport 
refrigeration contractor examinations are divided into three 
parts, "A", "B" and "C". 

(b) Each apphcant must successfully complete 70 percent 
of each part to pass an examination. Each candidate who 
passes an examination is issued a refrigeration contractor's 
license. 

(c) Each person who fails an examination is notified of 
his scores and the parts of the examination which he failed. 
Anyone passing one or more parts of the examination shall 
be allowed to retake the unpassed parts the next two 
succeeding examinations without retaking the entire exami- 
nation. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 60 - BOARD OF REFRIGERATION 
EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Refrigeration Exam- 
iners intends to amend rules cited as 21 NCAC 60 .0204, 
.0207 and .0314. Notice of Rule-making Proceedings was 
published in the Register on June 3, 1996. 

Proposed Effective Date: April 1, 1997 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): A demand 
for a public hearing must be made in writing addressed to 
Barbara Mines, PO Box 10666, Raleigh, NC 27605. The 
demand must be received within 15 days of this notice. 



Authority G.S. 87-54; 87-58. 

.0207 REQUIREMENTS FOR EXAMINATION 
APPLICANTS 

(a) An applicant for the commercial refrigeration exami- 
nation shall be eligible to take the that examination upon: 

(1) Filing with the Board an application, on a form 
provided by the Board, together with the com- 
bined examination-license fee. 

(2) Furnishing with his application information oatia 
faotorily verifying that he has acquired at least 
4000 hours of commercial refrigeration experi- 
ence gained while engaged actively and directly in 
the installation, maintenance, servicing or repair- 
ing of commercial, industrial or institutional 
refrigeration equipment. Prior to filing the 
application, qualify'ing exp e ri e nc e must b e ao 
quir e d whil e working und e r th e oup e rs'lsion of a 
p>orsoh who holds a valid rofrigoration contractor' s 
liconso, who is a rogi s tcrod professional engineer 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



839 



PROPOSED RULES 



or who hofl oqui' . 'alont industr)' oxporionco. — Up to 
ono half the oxperi e no e may b e in aoad e mio or 
toohnioal training dir e ctly rotat e d to th e fi e ld of 
ondoavor for which oxomination is roquo i stod. 
Applicants who obtain a liconso will rocoivo a 
oortifioat e — iosuod by tho Board, — bearing that 
lioonBO numb e r. — Th e lio e noo ohall not b e accign e d 
or tronsforrod to another individual. 

(b) An applicant for the transport refrigeration examina- 
tion shall be eligible to take that examination upon: 

(1) Filing with the Board an application, on a form 
provided by the Board, together with the com- 
bined examination license fee. 

(2) Furnishing with his application information verify- 
ing that he has acquired at least 4000 hours of 
transport andVor commercial refrigeration experi- 
ence gained while engaged actively and directly in 
the installation, maintenance, servicing or repair- 
ing of transport and/or commercial refrigeration 
equipment. 

(c) Prior to filing the application, qualifying experience 
shall ^ acquired while working under the supervision of a 
person who holds a valid refrigeration contractor's license, 
who is a registered professional engineer or who has 
equivalent industry experience. Up to one-half of the 
experience may be in academic or technical training directly 
related to the field of endeavor for which the examination is 
requested. Applicants who obtain a license shall receive a 
certificate issued by the Board, bearing that license number. 
The license shall not be assigned or transferred to another 
individual. 

(d) An individual holding a valid transport contractor 
refrigeration license shall be eligible to sit for the commer- 
cial refrigeration examination upon filing with the Board an 
application, on a form provided by the Board, together with 
the combined examination-license fee. 

fb)(e} The deadline for receipt of applications for a 
regular examination shall be six weeks prior to the examina- 



tion date. If an application is received after the published 
deadline, it shall be returned to the applicant, and he shall 
be notified that he may apply for and take the next examina- 
tion. This requirement may be waived for illness, personal 
necessity or similar extenuating circumstances. The Board 
publishes the deadline for application receipt in selected 
newspapers, on posters mailed to all refrigeration wholesal- 
ers in North Carolina and in its quarterly newsletter. 

feMf) If a person files an application for examination 
which is accepted, and takes and fails the examination, his 
verification of refrigeration experience is kept and is 
sufficient for taking any future examination, provided he 
files another application accompanied by the required fee. 

Authority G.S. 87-54; 87-58. 

SECTION .0300 - LICENSES AND FEES 

.0314 USE OF LICENSE 

(a) The licensed contractor shall not permit the use of his 
license by any other person. 

(b) All refrigeration contracting business, including all 
business advertising and the submission of all documents 
and papers by a licensee of the Board shall be conducted in 
the exact name in which the refrigeration contracting license 
is issued. 

(c) Should a licensee terminate his relationship from a 
company in which his license is issued, work begun prior to 
such termination may be completed under such conditions as 
the Board shall direct. However, no work for which a 
license is required under G.S. 87-58 may be bid for, 
contracted for or initiated prior to said company obtaining 
a license. 

Authority G.S. 87-54; 87-57. 



840 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



Rule-making Agency: 

tance 



DHR - Division of Medical Assis- 



Rule Citation: 10 NCAC SOB .0202, .0404, .0409 

Effective Date: August 22, 1996 

Findings Reviewed by Beecher Gray: Approved 

Authority for the rule-making: G.S. 108A-25(b); 108A- 
54; 108A-57; 42 CFR 435.121, 435.401, 435.603. 435. 731, 
435.732, 435.734, 435.812, 435.831, 435.908, 435.916; 45 
CFR 435.845, 435.851, 233.20, 233.51; Alexander v. 
Flaherty Consent Order Filed February 14, 1992 

Reason for Proposed Action: The Division of Medical 
Assistance proposes to modify two recipient eligibility 
methodologies to conform to Work First methodologies. The 
modifications are beneficial to recipients and simplify 
program administration. In the absence of a change to 
administrative procedures families will have their income 
calculated differently and will be subjea to different report- 
ing requirements. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by October 14, 1996 
to Portia W. Rochelle, APA Coordinator, Division of 
Medical Assistance, 1985 Umstead Drive, Raleigh, NC 
27603. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER SOB - ELIGIBILITY 
DETERMINATION 

SECTION .0200 - APPLICATION PROCESS 

.0202 INITIAL INTERVIEW 

(a) The county department of social services shall 
conduct an interview with the client or his representative. 
The client may have any person or persons of his choice 
participate in the interview. During the interview, the 
Income Maintenance Caseworker shall explain the applica- 
tion process, the client's rights and responsibilities, the 
programs of public assistance and the eligibility conditions. 

(b) The applicant shall be advised of his right to apply in 
more than one program category for which he qualifies and 
the advantages and disadvantages of the choices shall be 
explained. 



(c) The client shall be informed of the following: 

(1) That information he provides shall be checked for 
accuracy. The client shall be told what informa- 
tion he shall provide, and what sources the agency 
shall contact to check the information. Collateral 
sources of information shall include knowledge- 
able individuals, business organizations, public 
records, and documentary evidence. If the client 
does not wish necessary collateral contacts to be 
made, he can withdraw his application. If he 
denies permission to contact necessary collaterals 
and all alternative sources of verification, the 
application shall be denied due to failure to 
cooperate in establishing eligibility. 

(2) The client has the right to: 

(A) Receive assistance if found eligible; 

(B) Be protected against discrimination on the 
grounds of race, creed, or national origin 
by Title VI of the Civil Rights Act of 
1964. He may appeal such discrimination; 

(C) If eUgible for Medicaid and Medicare Part 
B, have the monthly premium paid in his 
behalf under an agreement between the 
state and SSA; 

(D) Have any information given to the agency 
kept in confidence; 

(E) Appeal, if he believes the agency's action 
to deny, change, or terminate assistance is 
incorrect, or his request is not acted on 
with reasonable promptness; 

(F) Reapply at any time, if found ineligible; 

(G) Withdraw from the program at any time; 
(H) Request the agency's help in obtaining third 

party information which he is responsible 
to provide; 
(I) Be informed of all alternative sources of 
verification for the information he is re- 
sponsible to provide. 

(3) The client shall be responsible for the following: 

(A) Provide the county department, state and 
federal officials, the necessary sources 
from which to locate and obtain informa- 
tion needed to determine eligibility; 

(B) Report to the county department of social 
services any change in situation that may 
affect eligibihty within ftve J^ days after it 
happens. The meaning of fraud shall be 
explained. The applicant shall be informed 
that he may be suspected of fraud if he 
faUs to report a change in situation and that 
in such situations, he may have to repay 
assistance received in error and that he may 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



841 



TEMPORARY RULES 



also be tried by the courts for fraud; 

(C) Inform the county department of social 
services of any persons or organization 
against whom he has a right to recovery. 
When he accepts medical assistance, the 
applicant assigns his rights to third party 
insurance benefits to the state. He shall be 
informed that it is a misdemeanor to fail to 
disclose the identity of any person or orga- 
nization against whom he has a right to 
recovery; 

(D) Immediately report to the county depart- 
ment the receipt of an I.D. card which he 
knows to be erroneous. If he does not 
report such and uses the I.D. card, he may 
be required to repay any medical expenses 
paid in error. 

Authority G.S. 108A-57: 42 C.F.R. 435.908; Alexander v. 

Flaherty, V.S.D.C. W.D.N. C. File No. C-C'74-183, 

Consent Order Filed 15 December 1989; Alexander v. 

Flaherty Consent Order filed February 14, 1992; 

Eff^ September 1, 1984; 

Amended Ejf. April 1, 1993; August 1, 1990; March 1. 

1986; 

Temporary Adoption Eff. August 22, 1996. 

SECTION .0400 - BUDGETING PRINCIPALS 

.0404 INCOME 

(a) Income that is actually available and that which the 
client or someone acting in his behalf can legally make 
available for support and maintenance shall be counted as 
income. 

(b) Only income actually available or predicted to be 
available to the budget unit for the certification period for 
which eligibility is being determined shall be counted as 
income. 

(c) For aged, blind, and disabled cases allowable disre- 
gards from income are based on Title XVI of the Social 
Security Act. 

(d) Deductions subtracted after disregards are: 

(1) Child or incapacitated adult care not to exceed 
one hundred and seventy-five dollars ($175.00) 
per child over two years of age or adult or two 
hundred dollars ($200.00) per child under two 
years of age for Family and Children's related 
cases. 

(2) A standard deduction of ninety dollars ($90.00) 
from the total earned income of each budget unit 
member for Family and Children's related cases. 

(3) For aged, blind, and disabled cases allowable 
deductions from income are based on Title XVI of 
the Social Security Act. 

(e) Except for M-PW wages, wage deductions and 



work-related expenses shall be calculated by converting the 
average amount per pay period into a monthly amount: 

(1) If paid weekly, multiply by '1.333. 4.3. 

(2) If paid bi-weekly, multiply by 2.1666. 2.15. 

(3) If paid semi-monthly, multiply by 2. 

(4) If paid monthly, use the monthly gross. 

(5) If salaried, and contract renewed annually, divide 
annual income etc. by 12. 

(f) For M-PW cases, the budget unit's actual income for 
the calendar month of eligibility shall be verified. 

Authority G.S. 108A-25(b); 42 C.F.R. 435.121; 42 C.F.R. 

435.401; 42 C.F.R. 435.603; 42 C.F.R. 435.731; 42 C.F.R. 

435.732; 42 C.F.R. 435.734; 42 C.F.R. 435.812; 42 C.F.R. 

435.831; 45 C.F.R. 435.845; 45 C.F.R. 435.851; 45 C.F.R. 

233.20; 45 C.F.R. 233.51; 

Ejf. September 1, 1984; 

Amended Eff. January 1, 1995; August 1, 1990; March 1, 

1986; 

Temporary Amendment Eff. August 22, 1996. 



.0409 CHANGE IN SITUATION 

(a) For Medicaid applications, once the county depart- 
ment of social services learns from any source that there has 
been a change in the budget unit's situation they shall notify 
the apphcant within five work days of the need to verify the 
change. A change In situation includes but not limited to: 

(1) Change of address, or 

(2) Change in living arrangement, or 

(3) Adding or deleting a budget unit member, or 

(4) Increase or decrease in income, or 

(5) Change in reserve, or 

(6) Cessation of disability or blindness, or 

(7) Parent or parents are no longer incapacitated or 
unemployed, or 

(8) Change in responsible relative, or 

(9) Change in Aid Program Category. 

(b) For an ongoing Medicaid case, once the county 
department of social services learns from any source that 
there has been a change in the budget unit's situation they 
shall review the case promptly and appropriate action shall 
be completed within 30 calendar days after the agency 
learns of the change in situation. 

(c) The Medicaid client or his representative shall report 
any change in situation that might affect eligibility within 
lw« \Q calendar days to the county department of social 



Authority G.S. 108A-54; 42 C.F.R. 435.916; 

Eff: September 1, 1984; 

Amended Eff. August 1, 1990; 

Temporary Amendment Eff. August 22, 1996. 



842 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its 
meeting of July 18, 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative 
Procedure Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules 
have been approved by RRC in a form different from that originally noticed in the Register or when no notice was 
required to be published in tJie Register. The rules published infill text are identified by an * in the listing of approved 
rules. Statutory Reference: G.S. 150B-21.17. 

These rules will become effective on the 31st legislative day of the 1997 Regular Session of the General Assembly or a 
later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically disapproves 
the rule. If a hill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives 
an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



4 


NCAC 


12C 


.GGG7 * 




10 


NCAC 


42V 


.G2G1 * 




10 


NCAC 


42V 


.G8G2 - 


.0803* 


15A 


NCAC 


IGF 


.G102 - 


.0103* 


15A 


NCAC 


IGF 


.G106 - 


.0107* 


15A 


NCAC 


IGF 


.0109 * 




15A 


NCAC 


IGF 


.0305 




15A 


NCAC 


IGF 


.0310 




15A 


NCAC 


IGF 


.0348 * 





Not Required, G.S. 150B-2 1.5(b)(3) 

11:03 NCR 113 

11:03 NCR 113 

11:01 NCR 14 

11:01 NCR 14 

11:01 NCR 14 

11:01 NCR 14 

11:01 NCR 14 

11:01 NCR 14 



TITLE 4 - DEPARTMENT OF COMMERCE 
CHAPTER 12 - ENERGY 



.0007 



SUBCHAPTER 12C - ORGANIZATION 

INSTITUTIONAL CONSERVATION 
PROGRAM 



Tho Dopartmont of Commorco, — Energy Division, has 
adopt e d a Stat e Plan for Taohnioal AoDiotano e and En e rgy 
Conoer » 'ation Moaouroo: — Grant Programs for Schools and 
Hospitals and for Buildings Owned by Units of Local 
Government and — Public — Care — Institutions. — as amended 
March 9, 199-1, pursuant to Title III of tho National En e rgy 
Conoor . 'ation Policy Act of 197 8 (Public Law 95 619. 92 
Stat. 3206, 4 2 U.S.C. Section 8201). This State Plan, and 
any future amendments to this plan are incorporated herein 
by roforeno e and is adopt e d in this Rul e by r e f e r e nc e as if 
written h e r e in word for word. Copi e s of th e Stat e Plan may 
bo obtained from the Energy Divi s ion, North Carolina 
Department of Commerce, Post Office Box 252 4 9, Raleigh, 
North Carolina 27611. 



History Note: Filed as a Temporary Amendment Eff. 

March 1 , 1990 for a period of 180 days to expire August 27, 

1990; 

Authority G.S. 143B-429: 143B-430: 143B-431; 143B-449; 

150B-12; Title 111 NECPA, P.L 95-619, 92 Stat. 3206, 42 



U.S.C. Section 8201; 

Eff. October 1, 1980; 

Amended Eff. August 1, 1985; December 1, 1981; 

ARRC Objection Lodged April 19, 1990; 

Amended Eff. August 1, 1990; 

RRC Objection Eff. June 16, 1994 due to lack of statutory 

authority; 

Amended Eff. August 16, 1994; 

Repealed Eff. April 1, 1997. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

CHAPTER 42 - INDIVIDUAL AND FAMILY 
SUPPORT 



SUBCHAPTER 42V 



PROTECTIVE SERVICES FOR 
ADULTS 



SECTION .0200 - ACCEPTANCE AND 

EVALUATION OF PROTECTIVE SERVICES 

REPORTS 

.0201 ACCEPTANCE OF REPORTS 

(a) The county department of social services must shall 
accept all reports alleging an abused, neglected, or exploited 
disabled adult is in need of protective services. This 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



843 



APPROVED RULES 



includes anonymous reports. If the county department 
determines that the address of the disabled adult given in the 
report is in another county, the department shall refer the 
person making the report to the appropriate county depart- 
ment. The county department receiving the original report 
shall follow up to make sure the appropriate county has 
received the report. 

fb) The department of social services shall make arrange- 
ments for 24 hour coverage to receive calls and take 
appropriate action. 

(c) Notwithstanding provisions in 10 NCAC 42V .0801 
through .0803. the director may immediately tell the District 
Attorney's office and local law enforcement agencies when 
there is reason to believe that physical harm may occur to 
the disabled adult. This would include sharing evidence of 
abuse or neglect the agency has to date. 

History Note: Authority G.S. 108A-103; MSB- 153; 
Eff. November 1, 1983; 

Amended Eff. December 1, 1991; July 1. 1990; 
Temporary Amendment Eff. December 12, 1995; 
Amended Eff. April 1. 1997. 

SECTION .0800 - CONFTOENTIALITY 

.0802 roENTITY OF COMPLAINANT AND OF 

INDIVIDUALS WHO HAVE KNOWLEDGE 
OF THE SITUATION 

The identity of the complainant and of individuals who 
provid e information about have knowledge of the situation 
of the disabled adult shall be kept confidential unless the 
court requires that such persons' identities be revealed with 
the oxcoption exceptions that that: 

(1) the complainant's name and the names of individ- 
uals who provid e information about have knowl- 
edge of the situation of the disabled adult may be 
given verbally to the Division of Facility Services 
when requested by that agency in order to carry 
out its inv e stigation, investigation, and 

(2) to the District Attorney's office and to law en- 
forcement agencies which are prosecuting or 
conducting a criminal investigation of alleged 
abuse, neglect or exploitation of a disabled adult. 

History Note: Authority G.S. 108A-103; MSB- 153; 

Eff. November 1, 1983; 

Amended Eff. December 1 , 1991; 

Temporary Amendment Eff. December 12, 1995; 

Amended Eff. April 1. 1997. 

.0803 SPECIFIC FINDINGS 

Specific findings of the evaluation shall be kept confiden- 
tial and shall not be released without consent of the disabled 
adult or court order, except that the department of social 
services at its discretion may share information about the 
adult inay be shared with other persons or agencies without 
the adult or caretaker's consent to the extent necessary to 



provide protective services. When evidence of abuse, 
neglect, or exploitation is found, and upon request of the 
district attorney or law enforcement agencies, such informa- 
tion shall be sent to help with a criminal investigation or 
prosecution of abuse, neglect or exploitation. 

History Note: Authority G.S. MSB- 153; 108A-80(d); 
Eff. November 1, 1983; 

Temporary Amendment Eff. December 12, 1995; 
Amended Eff. April 1. 1997. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0100 - MOTORBOAT REGISTRATION 

.0102 APPLICATION FOR CERTIFICATE OF 
VESSEL NUMBER 

(a) General: 



fH Exc e pt ao provid e d in Subparagraph (3) of this 

Paragraph, tho own e r of any motorboat prinoi 
pally U3od in the State of North Carolina shall, 
prior to its uoo. apply for a certificate of number 
on on offioial application form provid e d by tho 
Wildlif e R e oouroQo Commission. 

(3) Motorboata owned by tho United States, a state, 

or a subdivision thereof are exempt from required 
numb e ring, but may b o numb e r e d und e r th e 
provisions of Rul e .010'1(a)(5) of this S e ction. 
Motorboats owned and oj>oratod by non profit 
rescue squada are required to be numbered, but if 
th e y ar e op e rated oxolufiiv e ly for rescu e purposes, 
including r e scu e training, th e y may b e numb e r e d 
without charge as by a governmental entity as 
pfev idcd by Rule .010 4 (a)(5) of thi s Section. 

^ P e nding receipt of a r e gular c e rtificat e of numb e r. 

a motorboat may b e op e rat e d for not mor e than 
60 days under a temporary' certificate of number. 
(See Rule .0103 of this Section) 

{A) Application forms may b e obtained by applying to 

th e Wildlif e Resourc e s Commission at tho address 
shown in Subparagraph (a)(5) of this Rule, to any 
boat dealer or boat monufaoturor who is qualified 
as an agent for th e purpos e of issuing tomporar)' 
c e rtificates of numb e r [S ee Rule .0103(d) of this 
Section]. — or to any — North Carolina — certified 
hunting and fishing license agent. 

f5^ Th e compl e t e d application shall b e forwarded to: 

Motorboat R e gistration — Section. — Wildlife R e- 
sources — Commission. — Archdale — Building, 512 



844 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



APPROVED RULES 



North Salisbur)' Street, Raloigh. North Carolina 

27611. 
(b) Indii i 'idual OwTioro. Tho applioation shall oontain th e 
following information: 

(4) nomo of ownor; 

(3) addrooo of own e r, including zip ood e ; 

(3^ date of birth of own e r; 

{4) citizonship of ownor; 

(5) stato of principal uso of vooool; 

(6) proo e nt or previous boat numb e r (if any); 

f7) deoired period of rogiotration (one or thr ee y e ars); 

(8) uso of vossol (ploaauro, livory, domonatration, 

oommorcial — pasBongor, — commorc 4al — fishing, 

oth e r); 

mok e of v e ss e l (if known); 



(9^ 



(40) yoar of manufacturo or modol yoar (if known); 



fl-H- 



monufacturor'a hull idontification numbor (if any); 
ov e rall length of vess e l; 



(44) typo of vooool (open, cabin, house, oth e r); 

f443 hull material (wood, stool, aluminum, fiberglass, 

plastic, other); 
f4-i) type — of — propulsion — (inboard. — outboard, — ifl- 

board outdriv e , soil, and engin e mak e if avail 

ab}«>7 

(46) typo of fuel (gasoline, diosol, other); 

(44) c e rtification of own e rship; 

(48) signatur e of ownor. 

(e) — Livery Motorboat Owners. — Tho registration and 
numbering requiromonta of this Section shall apply to liver>' 
motorboato, e xc e pt that in any cas e w'horo tho motor is not 
rented with th e v e ssel, th e d e ooription of th e motor and type 
of fuel may bo omitted from tho application. 
(d) — Dealers and Manufacturers 

(4) Th e r e gistration and numb e ring r e quir e ments of 

this S e ction shall apply to d e al e rs in and monufao 
turors of motorboata. 

(S) Application for a certificate of number shall be 

mad e on th e approv e d applioation form pr e scrib e d 
in this R e gulation. — Dealers and manufactur e rs 
shall certify' that they are dcalora or manufactur 
ors, whichover tho case may b e . 

(3) TTio application, accompani e d by a f ee of fiv e 

dollars and fifty c e nts ($5.50), or thirt ee n dollars 
($13.00) in chock or money order as appropriate 
in accordance with tho provisions of Subparagraph 
(2) of Paragraph (a) of this Rul e , shall b e for 
ward e d to th e addr e ss stat e d in this Rul e . — fsee 
Subparagraph .0102(a)(5) of this Rulo], 

(4) Upon receipt by the Wildlife Resources Commis 

sion of a properly compl e t e d application and f ee , 
it shall iooue to th e applicant a d e al e r's or manu 
facturor's certificate of numbor aa appropriate, 
which may bo used in connection with tho opera 
tion of any motorboat in th e pooseosion of ouch 
dealer or manufactur e r, wh e n th e boat is b e ing 

uaod for domonatrativo purposes. Additional 

dealers' or manufacturers' certifioatos of number 



may bo obtained by making applioation in the 
sam e manner as pr e scribed for th e initial c e rtifi 
cat e with payment of an additional f ee of five 
dollars and fift)' cento ($5.50), or thirteen dollars 
($13.00) in chock or money order as appropriate 
in aooordanoo with the provisions of Subparagraph 
(2) of Paragraph (a) of this Rul e , for each addi 
tional certificate. 

(5) Dealers and manufacturers havo tho option of 

registering individual motorboato on a perman e nt 
basis und e r the provisions of Paragraph (b) of this 
Ruler 

(6) A "manufacturer" as tho torm ia used in those 

regulations is d e fined as a p e rson, firm, or corpo 

ration engaged in th e buoinoos of manufacturing 

voaaols either upon prior commission or for the 

purpose of soiling them after manufacture. — A 

"dealer" ao the t e rm is uo e d in those rogulations io 

defined as a person, firm, or corporation e ngag e d 

in tho business of offering vessels for sale at retail 

or wholesale from an oatablishod — location or 

locations. 

(a) General: Every owner of a vessel required to be 

numbered pursuant to G.S. 75A-4 and 75A-7 shall apply to 

the Vessel Registration and Title Section of the North 

Carolina Wildlife Resources Commission or to one of its 

authorized agents for a certificate of vessel number using an 

approved application form. 

(h) Individual Owners of Vessels. The application shall 
contain the following information: 

(1) name of owner (s); 

(2) address of owner, including zi p code; 

(3) state of principal use of vessel; 

(4) present or previous vessel registration number (if 
any); 

(5) desired period of registration (one or three years); 

(6) use of vessel (pleasure, livery, demonstration, 
commercial passenger, commercial fishing, 
other); 

(7) make of vessel (if known); 

(8) year of manufacture or model year (if known); 

(9) manufacturer's hull identification number (if any); 

(10) overall length of vessel; 

(1 1) type of vessel (open, cabin, houseboat, other); 

(12) hull material (wood, metal fiberglass, inflatable, 
other); 

(13) type of propulsion (inboard; outboard; in- 
board-outdrive; jet drive; sail); 

(14) type of fuel (gasoline, diesel. electricity other); 

(15) proof of ownership document; 

(16) signature of owner(s). 

(c) Livery Vessel Owners. A "livery" vessel is one that 
is rented or leased to an individual for a specific time period 
by the owner. The registration and numbering requirements 
of G.S. 75A-4 and 75A-7 shall apply to livery vessels. In 
any case where the motor is not rented with the vessel, the 
description of the motor and type of fuel may be omitted 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



845 



APPROVED RULES 



from the application. The standard application form for 
vessel registration shall be used for livery vessels with the 
term "livery" marked in the section designated for "use of 
vessel. " 

(d) Dealers and Manufacturers of Vessels. A "manufac- 
turer" as the term is used in this Rule is defined as a 
person, firm, or corporation engaged in the business of 
manufacturing vessels either upon prior cominission or for 
the purpose of selling them after manufacture. A "dealer" 
as the term is used in this Rule is defined as a person, firm. 
or corporation engaged in the business of offering vessels 
for sale at retail or wholesale from an established loca- 
tion(s). The registration and numbering requirements of 
G.S. 75A-4 and 75A-7 shall apply to vessels belonging to 
dealers and manufacturers. The standard application for a 
certificate of vessel number shall be used for dealer and 
manufacturer certificates with the term "demonstration" 
marked in the section designated for "use of vessel." Upon 
receipt of a properly completed application and fee for 
dealer or manufacturer vessel registration, the Wildlife 
Resources Commission shall issue to the applicant a dealer's 
or manufacturer's certificate of vessel number, as appropri- 
ate, which may be used in connection with the operation of 
any vessel in the possession of the dealer or manufacturer 
when the vessel is being demonstrated. Additional dealer's 
or manufacturer's certificates of vessel number may be 
obtained by making application in the same manner as 
prescribed for the initial certificate with payment of an 
additional fee for each additional certificate. Dealers and 
manufacturers haye the option of registering individual 
vessels in accordance with Rule .0104(a) of this Section. 



Legislative Objection Lodged Eff. December 
75A-3; 75A-5; 75A-7; 75A-19; 33 C.F.R. 



History Note: 
16, 1980; 
Authority G.S. 
174.17: 

Eff. February 1, 1976; 

Amended Eff. July 1, 1988 at ARRC request to cure refer- 
enced Legislative Objection; 

Amended Eff. March L i997; November 1, 1993; August 1, 
1988; July 1, 1988; August 31, 1980. 

.0103 TRANSFER OF OWNERSHIP 

fft^ — Transfer Dircx;t from One Individual Ownor to 
Another Individual Owner 



period, the now ownor may uso tho cortificato of 
number of the prior ov . Ti e r as a temporary' oartifi 
oato of number t> e nding roooipt of hio own o e rtifi 
cato; — providod, — tho cortificato — io ondoraod in 
aooordxmco with Subparagraph (a)( 1 ) of thio Rulo. 
In tho ovont tho transf e r ooours during th e 60 days 
prior to e xpiration of tho r e gistration period, tho 
original cortificato will still bo honored up to tho 
full period of 60 days as a tcmporar)' cortificato 
e ven though it would oth e rv . 'ioo hav e e xpired. 
Where tranofor of own e rship from on e individual 
to another occurs after tho oxpiration of tho 
registration period, tho cortificato of number may 
not b e usod by th e n e w owner. 

ffe) Transf e r of a Pr e viously R e gist e r e d — Motorboat 

Through a Doalor 

{^ TTio ov i Tior transferring his motorboat to a dealer 

during th e registration — p e riod shall — give — the 
oortifioate of numb e r to th e dealer aft e r dating and 
signing tho statoment of transfer on the reverse 
side of tho cortificato on tho day of tho transac 

(S^ Wh e n th e motorboat is sold by th e deal e r, h e shall 

date and sign tho cortificato of number on the 
rovorso side on tho day of tho transaction and 
d e liv e r it to tho now owner. 

(3^ For a p e riod of 60 days following the transfer of 

ownership of a rcgiatorod — motorboat from or 
through a dealer to a nosv o' ^ nor, tho now ov ^ 'nor 
may us e th e o e rtifioate of th e prior individtiol 
own e r as — a — t e mporary' — o e rtifioate — of numb e r 
pending receipt of his own certificate; provided: 
(A) Tho cortificato i s endorsed in acoordxmco 

with Subparagraphs (1) and (2) of this 

Paragraph. 
(fi) The original os ^ Tior endorsed tho cortificato 

to tho boat doalor while it was still in 

forc e , and 
(€) TTi e boat dealer's sal e and e ndors e m e nt 

occurs while the registration certificate is 

still in force. 

f4^ Exc e pt as permitt e d abov e , a c e rtificat e of numb e r 

may not be us e d after the e xpiration of th e r e gis - 
tration pKjriod. 
(c) Transfer of an Individually Registered Motorboat by 



f-H If th e own e rship of a r e gist e r e d motorboat is a D e al e r or Manufactur e r. — Motorboats individually num 

chang e d during th e r e gistration p e riod, th e own e r b e r e d by d e al e rs or manufactur e rs shall upon transfer of 

ownership bo govomod by the provisions of Paragraph (a) 
of this Rulo. 

(d) T e mporary' C e rtificat e of Numb e r 

fl^ Upon acquisition of a motorboat not pr e viously 

numbered or a motorboat tho registration of which 
has expired, the new owner may transmit with his 
application for th e regular o e rtifioat e of number a 
requ es t for a t e mporary' o e rtifioat e of numb e r. 
The request must state the date the vessel was 
acquired by the applicant. For a period not 



shall complete the statement of transfer on tho 
reverse side of tho cortificato of number, date as 
of th e day of th e transaction, sign, and d e liv e r to 
th e n e w own e r. 

(33 The new owner shall apply for a now certificate 

of number on an official application form. — The 
original number must b e retained when a vossol 
numb e red is again r e gist e r e d as a motorboat. 

(5-) For 60 days following the tran s fer of ownership 

of a regi s tered motorboat during the registration 



846 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



APPROVED RULES 



OKCooding 60 dayo following tho dnto of acquisi 
tion, the motorboat may b e op e rat e d on th e 
te mporaiy oortifioate of numb e r p e nding r e c e ipt of 
tho regular oortificato from tho Wildlife Rosourcoa 
Commission. 
(2) In order to malto temporaiy o e rtifioat e o of numb e r 
available locally within th e Stat e , boat d e al e rs and 
monufaoturoro who conduct busLnoss from ostab 
lishod locations in North Carolina may bo dosig 
noted ag e nts of tho Wildlife Rooouro e o Commio 
sion for the purpose of issuing temporary' c e rtifi 
catos of motorboat number. — To qualify' as an 
agent for this purpose, such dealer or manufac 
turor must e nter into a writt e n agr ee m e nt with tho 
Wildlif e RoGouro e o Commission by which h e 
assumes responsibility for conducting tho boat 
registration agoncy as a public sorvico and in 
strict oomplioDo e with thes e r e gulations. — Upon 
approval and ratification of such agre e ment by th e 
Exocutivo Director or his designee, tho agent will 
bo furnished with a supply of the temporary 
certificat e forms tog e th e r with forms for us e in 
applying for th e r e gular certificate of motorboat 
number. — Tho forms for tomporar)' certificate of 
number are serially numbered and ore prepared in 
triplicate so as to provide an original (Part 1) and 
tv t 'o copi e s (Parts 2 and 3). 

(3^ A boat registration agency issuing temporary 

certificates of motorboat numbor shall bo con 
ducted in accordanc e with tho following requir e 
ments and r e strictions: 

(A) The temporary certificates of number shall 

bo issued without charge. 

(fi) TTi e r e shall bo no substitute for the printed 

form of c e rtificat e suppli e d by th e Wildlif e 
Resourc e s Commission. — No agent shall 
issue any other writing purporting to autho 
rizo th e us e of an unr e gist e r e d motorboat. 

(G) The certificat e s shall b e issu e d oons e ou 

tively in tho order in which thoy are sori 
ally numbered, beginning with the lowest 
numb e r. 

(B) Wh e n th e vessel has been acquir e d from a 

source other than the agent, a temporary 
certificate of number shall not bo issued 
unless and until th e own e r produces a bill 
of sal e or oth e r m e morandum of transf e r 
which identifies tho vessel and which has 
been dated, signed and acknowledged by 
th e transferor b e for e a notar>' public or 
oth e r offic e r authoriz e d to tak e acknowl 
odgmont s . 

fE3 All information called for on tho temporary 

c e rtificat e — of numbor shall b o prop e rly 
entered in th e spac e s provid e d, including 
the date of expiration of the certificate 
which shall bo tho 60th day following tho 



date of acquisition of tho vessel by tho 
own e r. 

(F) Th e t e mporary certificate must b e sign e d 

by the owner. — The agent shall deliver to 
tho ownor Part 1 of the certificate and a 
fef m with which to apply for th e regular 
certificate of numb e r. 

(G) Within 30 days following tho issuance of a 

temporary certificate of numbor, tho agent 
shall transmit Part 2 th e r e of to the Wildlife 
R e sourc e s — Commission — at — the — addr e ss 
indicated in Rule .0102(a)(5) of this Soc 
tion. — If a bill of sale or other momoran 
dum of transf e r has been roquirod, — the 
original or a copy thereof shall bo attached 
to tho Commission's copy of tho temporary 
certificate of numbor. 

(H) The agent shall r e tain Part 3 of th e tempo 

rary c e rtificat e of numb e r for a p e riod of at 
least one year and shall permit inspection 
thereof during business hours by any law 
e nforc e m e nt officer or authoriz e d personnel 
of th e Commission. 

(I) No agent shall knowingly issue more than 

ono tompomry certificate of numbor for tho 
sam e v e ss e l during any cal e ndar year. 

(J) An ag e nt may mak e application for a certif 

icato of numbor or for a registration on 
behalf of a now ownor to whom a tempo 
raiy certificat e of numb e r has boon issued 
provided tho application and f ee is submit 
tod to the Wildlife Resources Commission 
within 10 days of tho date of issuxmco of 
tho temporary' c e rtificat e . 

(K) Upon t e rmination of a boat registration 

agoncy which issues temporary certificatos 
of motorboat numbor, all copies (Part s 3) 
of such c e rtificat e s ther e tofore issued and 
all unus e d forms for temporary' certificatos 
of numbor then remaining in possession of 
tho terminated agency shall be delivered to 
the Wildlif e R e sourc e s Conmiission or to a 
Commission e mploy ee . 

^ A boat rcgistmtion agoncy which i s sues temporary 

certificates of motorboat number, boing a mutual 
and voluntary und e rtaking, may b e t e rminat e d at 
any tim e , with or without caus e , by e ith e r party 
thereto by giving a notice of such termination to 
tho other party. 

(#) If th e ag e nt who issu e s a t e mporary' c e rtificat e of 

numb e r do e s not submit th e application for certifi 
cate of number of registration on behalf of the 
new ownor, — tho new ownor must submit the 
application and foe to tho Wildlif e R es ourc es 
Commission within 10 days of the dat e of i s su 
once of the temporary certificate. 
^6) In order to bo valid, the t e mporary certificate of 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



847 



APPROVED RULES 



boat number must contain the following: 

fA4 full nam e and addrooB of ioouing ag e nt: 

(ft) full name and addrooo of purohao e r. Lnolud 

ing zip code; 

provious registration numbor, — if any (if 

none, so stat e ); 

stat e of principal ueo of s' e os e l; 

mal<e of veoool; 



(€)- 









length in foot; 

hull material; 

kind of propulsion; 

date of purchase of boat; 

dato of apphcation for regular cortificato of 

number; 

expiration dat e of t e mporary' o e rtifioat e ; 

signature of purchaser. 



ff^ Temporary' certificates of numbor can be issued 

by boat r e gistration ag e nts when oertifioat e o of 
numb e r requiring corroctions oth e r than address 
or name changes are presented for renewal or 
when the agent finds that an error has been made 
in validating the certificat e of numb e r. 
(e) — Demonstration and Uso of V e ss e ls H e ld by D e al e rs 

f4^ Demonstration of rogistored motorboats hold by 

dealers for sale may bo with the use of the cortifi 
oat e of number endors e d by th e original owner so 
long as the regi s tration is in forc e . — i\ny dealer or 
any permittee of a dealer demonstrating a motor 
boat must utilize a sot of dealer's numbers and th e 
corresponding d e aler's o e rtifioat e of numb e r on 
such vess e l aft e r the original o e rtifioat e of number 
has expired. Tho dealer's numbers and oertifioate 
of number may. however. Ixi used during demon 
strations b e for e tho end of th e r e gistration p e riod 
at the option of tho deal e r. — In any e v e nt, wh e r e 
a set of dealer's numbers is used upon a previ 
ously numbered vessel, tho original numbers must 
h e cov e r e d in accordanc e with Rul e .0106(o) of 
this Section. 

(3) Dealers who have bought or otherwise possess 

motorboats for resale and who wi s h to operate or 
l e nd out such motorboats for mor e g e n e ral uses 
than for d e monstration only must hav e th e indi 
vidual motorboat registrations transferred to their 
names. 
(a) Transfer of titled \essels. 

(1) When the ownership of a titled vessel is trans- 
ferred, the current owner(s) as recorded on the 
face of the Certificate of Title for Watercraft shall 
complete the Assignment of Title section on the 
reverse side of the certificate of title according to 
the given instructions and transmit the title to the 
new owner(s). If the certificate of title contains 
any encumbrances, security interests, or liens on 
its face, the Release of First Lien section on the 
reverse side of the certificate of title must be 
completed by the lienholder(s) according to given 



instructions before the title is transmitted to the 
new owner(s). If more than one lien is outstand- 
ing on the title, all liens must be satisfied as 
evidenced by attaching additional Release of Lien 
statements completed in the same fashion as the 
Release of First Lien section before the certificate 
of title is transmitted to the new owner(s). 

(2) The new owner(s) must complete and submit an 
Application for Title and Registration (Form WT- 
1} along with the properly assigned certificate of 
title and applicable registration and title fees to 
the Vessel Registration and Title Section of the 
Wildlife Resources Commission for processing. 
Tlie new owner(s) shall indicate on the application 
whether or not the vessel will be titled under the 
new ownership; and, if sOj^ whether or not any 
liens exist on the vessel. If the new owner(s) 
elects to transfer the title, then a new Certificate 
of Title for Watercraft shall be issued, including 
recordation of any new liens that are listed on the 
application, 
(b) Transfer of non-titled vessels. 

( 1) Direct transfer from one individual owner to 
another. 

(A) If the ownership of a once-registered vessel 
is transferred, the previous owner shall 
complete the statement of transfer provided 
with the certificate of vessel number, date 
it as of the day of the transaction, sign if^ 
and deliver it to the new owner. 

(B) The new owner shall complete the transfer 
of vessel ownership by preparing and 
submitting an official application form for 
this purpose within 10 days from the date 
of transfer. TTie original vessel registration 
number must be retained when a vessel 
most recently registered in North Carolina 
is registered to a new owner. A new 
vessel registration number shall be issued 
to vessels most recently registered in an- 
other State or never before registered. 

(C) For 60 days following the transfer of own- 
ership of a once-registered vessel, the new 
owner may use the certificate of vessel 
number of the prior owner as a temporary 
certificate of number pending receipt of his 
own certificate provided the certificate js 
validated m accordance with Part (T3)(1)(A) 
of this Rule. 

(D) An individual may also transfer ownership 
of a vessel by preparing a Bill of Sale 
naming the new owner, provided both 
parties to the sale sign the Bill of Sale 
before a notar\' public. If a Bill of Sale is 
the instrument of transfer, the new owner 
may use a cop\' of k as a temporary certifi- 
cate of vessel number for a period of 60 



848 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



APPROVED RULES 



days. The notarized Bill of Sale must 
accompany the application for transfer of 
ownership and the a pplication must be 
mailed within 10 days of the date of sale. 

(2) Transfer of a once-registered yessel through a 
dealer. 

(A) An owner selling or transferring a once- 
registered vessel to a dealer shall, on the 
day of the transaction, giye the certificate 
of vessel number to the dealer after dating 
and signing the statement of transfer pro- 
vided with the certificate. 

(B) When the vessel is subsequently sold, the 
dealer shall, on the day of the transaction, 
date and sign the statement of transfer 
which was received from the previous 
owner and give it to the new owner. If no 
certificate of vessel registration is available. 
a Bill of Sale may be used to document 
transfer of ownership to the purchaser, 
provided both parties to the sale sign the 
Bill of Sale before a notary public. 

(Q For a period of 60 days following the 
transfer of ownership of a once-registered 
vessel ^ the new owner may use the certifi- 
cate of vessel number of the prior owner as 
a temporary certificate of vessel number, 
provided the certificate is validated in 
accordance with Part (b)(1)(A) of this Rule; 
or a copy of the notarized Bill of Sale may 
be used as a temporary certificate. 

(3) Transfer of a vessel individually-registered to a 
dealer or manufacturer. Vessels that have been 
individually numbered by dealers or manufactur- 
ers shall upon transfer of ownership be governed 
by the provisions of Subparagraph (b)(1) of this 
Rule. 

History Note: Authority G.S. 75A-3; 75A-5; 75 A- 19: 33 

C.F.R. 174.21; 

Eff. February 1, 1976; 

Amended Eff. March 1^ 1997: February 1, 1995; November 

1, 1993; July 1, 1988; April 19, 1981. 

.0106 DISPLAY OF VESSEL NUMBERS 

(a) The numbers shall be painted on or attached to each 
side of the forward half of the vessel for which issued in 
such a position as to provide clear legibility for identifica- 
tion. The numbers shall read from left to right and shall be 
in block characters of good proportion not less than three 
inches in height. The numbers shall be of a solid color 
which will contrast with the color of the background and so 
maintained as to be clearly visible and legible; i.e., dark 
numbers on a light background, or light numbers on a dark 
background. 

(b) No other number, except the year date of the valida- 
tion decal described in Rule .0107 of this Section, shall be 



carried on the bow of such vessel. 

(c) Manufacturers or dealers may have the number 
awarded to them printed upon or attached to a removable 
sign or signs to be temporarily but firmly mounted upon or 
attached to the boat vessel being demonstrated, so long as 
the display meets the requirements of thooe r e gulationo. the 
Rules in this Section. Where a currently or previ- 
ously-numbered motorboat vessel is being demonstrated with 
a set of dealer's numbers, the permanent numbers painted 
on or attached to the bow must shall be covered. 

(d) A vessel registered to a governmental entity and 
bearing the letter "P" shall continue to display the assigned 
numbers for so long as die vessel belongs to a governmental 
entity Upon transfer of ownership to a private individual, 
the new owner shall app ly to the Wildlife Resources 
Commission for a new certificate of vessel number and shall 
be assigned a new vessel registration number. 

History Note: Authority G.S. 75A-3; 75A-5; 75A-19; 
Eff. February 1, 1976; 
Amended Eff. March 1. 1997. 



.0107 VALIDATION DECAL 

In addition to the certificate of vessel number, the 
Wildlife Resources Commission wiH shall supply to the 
owner of each motorboat vessel that is p e rmanently num 
borod numbered, an official validation decal indicating the 
last year and month of the period of registration. The 
owner shall affix such validation decal so as to be clearly 
legible on the starboard bow of the vessel immediately 
following and within six inches of the motorboat vessel 
number. Any validation decal issued for a motorboat vessel 
numbered on application by a governmental entity as 
provid e d by Rul e .010'1(a)(5) of thio S e ction shall bear 
contain no expiration date, but shall bear the letter "P" and 
shall not be subject to renewal so long as the vessel remains 
the property of a governmental entity. When any such 
motorboat vessel is transferred to private ownership, the 
decal shall be removed or obliterated by the transferring 
agency. 

History Note: Authority G.S. 75A-3; 75A-5; 75A-7; 33 

C.F.R. 174.15; 

Eff. February 1, 1976; 

Amended Eff. March ]_, 1997; August 31, 1980; January 1, 

1980. 

.0109 TEMPORARY CERTIFICATE OF VESSEL 
NUMBER 

(a) Upon acquisition of a vessel not previously numbered 
or a vessel for which no certificate of vessel number is 
available, the new owner may transmit with his application 
for the regular certificate of vessel number a request for a 
temporary certificate of vessel number. The request must 
state the date the vessel was acquired by the applicant. For 
a period not exceeding 60 days following the date of 
acquisition, the vessel may be operated on the temporary 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



849 



APPROVED RULES 



certificate of vessel number pending receipt of the regular 
certificate. 

(b) In order to make temporary certificates of vessel 
number readily available locally throughout the State. Vessel 
Registration Agents appointed pursuant to Rule .0104(d) of 
this Section may issue temporary certificates of vessel 
number. Vessel Registration Agents shall be furnished a 
supply of temporary certificates of vessel number and 
application forms for use in applying for regular certificates 
of vessel number. Temporary certificates of vessel number 
shall be prepared in duplicate so as to provide an original 
(Part 1) and a copy (Part 2). The original shall be given to 
the qualified vessel owner for his use in operating the vessel 
and the copy shall be retained by the Vessel Registration 
Agent. 

(c) Vessel Registration Agents shall follow the require- 
ments and restrictions set forth herein: 

(1) Vessel Registration Agents may charge a reason- 
able fee to vessel owners for issuance of tempo- 
rary certificates of vessel number commensurate 
with the direct cost and time involved in issuing 
the certificate, provided that notice of the charge 
for issuing a temporary certificate is prominently 
posted on the premises and the customer is ad- 
vised of the fee before the transaction is made. 

(2) No substitute for the printed form of the tempo- 
rary certificate of vessel number supplied by the 
Wildlife Resources Commission shall be used by 
an agent and no agent shall issue any writing 
purporting to authorize the use of an unregistered 
vessel. 

(3) When the vessel has been acquired from a source 
other than the agent, a temporary certificate of 
vessel number shall not be issued unless and until 
the owner produces a notarized bill of sale, a 
certificate of vessel number validated by the 
previous owner, or other memorandum of transfer 
which identifies the vessel and which has been 
dated, signed and acknowledged by the transferor 
before a notary public or other officer authorized 
to take acknowledgments. 

(4) All required information on the temporary certifi- 
cate of vessel number shall be properly entered in 
the spaces provided, including the date of expira- 
tion of the certificate, which shall be the 60th day 
following the date of acquisition of the \'essel by 
the owner. 

(5) After the owner signs the temporary certificate, 
the agent shall deliver to the owner Part \ of the 
certificate and an application form with which the 
owner may apply for a regular certificate of 
vessel number. 

(6) The agent shall keep Part 2 of the temporary 
certificate as a part of the official records of the 
agency for a period of at least 90 days. If a bill 
of sale or other memorandum of transfer has been 
required to verify ownership, a copy thereof shall 



be attached to the agent's copy of the temporary 
certificate of vessel number. 

(7) No agent shall knowingly issue more than one 
temporary certificate of vessel number to the same 
person for the same vessel during any twelve 
month period. 

£8) An agent may make application for a certificate of 
vessel number or for a transfer of registration on 
behalf of a new owner to whom a temporary 
certificate has been issued, provided the applica- 
tion and fee are submitted to the Wildlife Re- 
sources Commission within 10 days of the date of 
issuance of the temporary certificate. 

(9) Upon termination of a vessel registration agency, 
all copies (Part 2} of temporary certificates of 
vessel number previously issued and all unused 
forms for temporary certificates of vessel number 
then remaining in possession of the terminated 
agency shall be delivered to the Wildlife Re- 
sources Commission. 

(d) A vessel registration agency which issues temporary 
certificates of vessel number, being a mutual and voluntary 
undertaking, may be tenninated at any time, with or without 
cause, by either party thereto by giving written notice of 
termination to the other party. 

(e) If the agent who issues a temporary certificate of 
vessel number does not submit the application for a regular 
certificate of vessel number on behalf of the new owner, the 
new owner must submit the application and fee to the 
Wildlife Resources Commission within 10 days of the date 
of issuance of the temporary certificate. 

(f) In order to be valid, the temporary certificate of 
vessel number must contain the following: 

(1) full name and address of issuing agent; 

full name and address of owner(s), including zip 
code; 



(2) 
£3} 



(4) 
15} 
16} 

m 

18} 

19} 

(10) 



previous vessel registration number, if any (if 

none, so state); 

state of principal use of vessel: 

make of vessel; 

vessel length in feet; 

hull material; 



type of propulsion; 

date of purchase of vessel; 

date of application for regular certificate of vessel 

number; 

(11) expiration date of temporary certificate; 

(12) signature(s) of owner(s) and agent. 

(g) Temporary certificates of vessel number shall be 
issued by vessel registration agents when certificates of 
vessel number are presented for renewal at the vessel 
registration agency. 

History Note: Authority G.S. 75A-3; 75A-5; 33 C.F.R. 

174.21; 

Eff. March 1. 1997. 



850 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



APPROVED RULES 



SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0348 PERSON COUNTY 

(a) Regulated Area. This Rule applies to the Mayo 
Electric Generating Plant Reservoir, otherwise known as 
Mayo Reservoir, which is located in Person County. 

(b) Restricted Zones. Except for authorized personnel of 
the power company, no jjerson shall operate a motorboat or 
vessel in any restricted zone which is marked to prevent 
entry by boats. 

(c) Mast Height. No jDerson shall place or ojjerate on the 
regulated area described in Paragraph (a) of this Rule any 
sailboat or other vessel having a mast or any superstructure 
extending vertically above water level a distance of 35 feet 
or more. 

(d) Speed Limit. Except as provided in Paragraph (e) of 
this Rule, no person shall operate a vessel at greater than 
no-wake speed within 50 yards of any marked bridge, boat 
launching ramp, pier, boat storage structure, or boat service 
area on the regulated area described in Paragraph (a) of this 
Rule. 

(e) Skiing. Except to leave or return to the shore or a 
boat launching ramp, no skiing is permitted within any 
speed zone described in Paragraph (d) of this Rule. In 
leaving or returning to the shore or boat ramp, all vessels 



pulling skiers must shall be operated on a course perpendic- 
ular to the shore line. Upon dropping skiers within any 
such speed zone, the boat speed shall be reduced to no-wake 
speed. 

(f) Swimming Areas. No jjerson shall operate any vessel 
or water skis within a marked public swimming area. 

(g) Boating Access. No vessel shall be placed on the 
regulated area described in Paragraph (a) of this Rule from 
any point other than the boat launching ramp provided on 
SR 1515. 

(h) Placement and Maintenance of Markers. The Board 
of Commissioners of Person County is designated a suitable 
agency for placement and maintenance of markers imple- 
menting this Rule. Provided the said board exercises its 
supervisory responsibility, it may delegate the actual 
placement and maintenance to some other responsible 
agency, corporation, group or individual. With regard to 
marking the regulated area described in Paragraph (a) of this 
Rule, the supplementary standards set forth in Rule .0301(g) 
of this Section shall apply. 

History Note: Authority G.S. 75A-3; 75A-15; 
Ejf. August 1, 1984; 
Amended Eff. March 2. 1997. 



"' 



NORTH CAROLINA REGISTER 



August 15, 1996 



851 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. August 15. 1996 
at 10:00 a.m. Anyone wishing to submit written comment on any rule before the Commission should submit those 
comments to the RRC staff, the agency, and the individual Commissioners by Monday. Aueust 12. 1996. gl 5:00 p.m. 
Specific instructions and addresses may be obtained from the Rules Review Commission at 919-733-2721. Anyone 
wishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Jennie J. Hayman - Chairman 
Bill Graham 
Paul Powell 
Ed Shelton 



RULES REVIEW COMMISSION MEETING DATES 



August 15, 1996 
September 19, 1996 
October 17, 1996 



November 21, 1996 
December 19, 1996 



MEETING DATE: AUGUST 15, 1996 



FOLLOW UP MATTERS: 



DHR Social Services Commission - 

EHNR Environmental Management Commission 



Wildlife Resources Commission - 
Commission for Health Services - 

Examiners for Nursing Home Administrators 

Real Estate Commission - 



10 NCAC 41F .0707, .0813, .0814 

15A NCAC 2B .0101, .0103, .0109, .0201, .0202, .0231 

(Rule .0231 was Noticed as Rule .0220) 

15A NCAC 2H .0501, .0502, .0503, .0504, .0506, .0507 

15A NCAC lOF .0104, .0105 

15A NCAC 18A .3106 

21 NCAC 37H .0102 

21 NCAC 58E .0302 



LOG OF FILINGS 
RULES SUBMITTED: JUNE 21, 1996 THROUGH JULY 22, 1996 



AGENCY/DIVISION 



RULE NAME 



RULE 



ACTION 



DEPARTMENT OF INSURANCE 






Definitions 


11 NCAC 20 .0101 


Adopt 


Written Contracts 


11 NCAC 20 .0201 


Adopt 


Contract Provisions 


1 1 NCAC 20 .0202 


Adopt 


Changes Requiring Approval 


1 1 NCAC 20 .0203 


Adopt 


Carrier Contracts 


1 1 NCAC 20 .0204 


Adopt 


Filing Requirements 


11 NCAC 20 .0205 


Adopt 


Provider Availability 


11 NCAC 20 .0301 


Adopt 


Provider Accessibility 


1 1 NCAC 20 .0302 


Adopt 


Provider Network 


1 1 NCAC 20 .0303 


Adopt 


Monitoring Activities 


1 1 NCAC 20 .0304 


Adopt 


Credential Verification 


11 NCAC 20 .0401 


Adopt 


Organization Structure 


1 1 NCAC 20 .0402 


Adopt 


Written Credential Verification 


1 1 NCAC 20 .0403 


Adopt 



852 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



RULES REVIEW COMMISSION 



Application 

Verification of Credentials 

Provider Files 

Reverification 

Confidentiality 

Records and Exam 

Delegation 

Suspension or Termination 

Program 

Structure 

Plan 

Activities 

Quality of Care 

Delegation of Activities 

Corrective Action 

Conflicts of Interest 

Confidentiality 

Records and Exams 

Internal Audit 

Application 

Written Notice 

Accessibility 

DEIESfR/ENVmONMENTAL MANAGEMENT COMMISSION 

Little Tennessee River Basin 

Catawba River Basin 

Lumber River Basin 

Neuse River Basin 

Tar-Pamlico River Basin 

Purpose 

Scope 

Conflict with Other Laws 

Definitions 

Area of Review 

Corrective Action 

Mechanical Integrity 

Financial Responsibility 

Classification 

Requirements 

Permits 

Additional Criteria 

Abandonment 

Variance 

Delegation 

Purpose 

Applicability 

Oxygen Content Standard 

DEPARTMENT OF REVENUE 

EFT General Requirements 
Voluntary EFT Program 

TRANSPORTATION/DIVISION OF HIGHWAYS 

Federal Disaster Assistance 
Purpose 
Definitions 
Certification of Firms 



1 1 NCAC 20 .0404 


Adopt 


1 1 NCAC 20 .0405 


Adopt 


1 1 NCAC 20 .0406 


Adopt 


1 1 NCAC 20 .0407 


Adopt 


1 1 NCAC 20 .0408 


Adopt 


1 1 NCAC 20 .0409 


Adopt 


11 NCAC 20 .0410 


Adopt 


11 NCAC 20 .0411 


Adopt 


11 NCAC 20 .0501 


Adopt 


1 1 NCAC 20 .0502 


Adopt 


1 1 NCAC 20 .0503 


Adopt 


1 1 NCAC 20 .0504 


Adopt 


1 1 NCAC 20 .0505 


Adopt 


1 1 NCAC 20 .0506 


Adopt 


1 1 NCAC 20 .0507 


Adopt 


1 1 NCAC 20 .0508 


Adopt 


1 1 NCAC 20 .0509 


Adopt 


11 NCAC 20 .0510 


Adopt 


11 NCAC 20 .0511 


Adopt 


11 NCAC 20 .0601 


Adopt 


1 1 NCAC 20 .0602 


Adopt 


11 NCAC 20 .0701 


Adopt 


15A NCAC 2B .0303 


Amend 


15A NCAC 2B .0308 


Amend 


15A NCAC 2B .0310 


Amend 


15A NCAC 2B .0315 


Amend 


15A NCAC 2B .0316 


Amend 


15A NCAC 2C .0201 


Amend 


15A NCAC 2C .0202 


Amend 


15A NCAC 2C .0203 


Amend 


15A NCAC 2C .0204 


Amend 


15A NCAC 2C .0205 


Amend 


15A NCAC 2C .0206 


Amend 


15A NCAC 2C .0207 


Amend 


15A NCAC 2C .0208 


Amend 


15A NCAC 2C .0209 


Amend 


15A NCAC 2C .0210 


Amend 


15A NCAC 2C .0211 


Amend 


15A NCAC 2C .0213 


Amend 


15A NCAC 2C .0214 


Amend 


I5A NCAC 2C .0215 


Adopt 


15A NCAC 2C .0216 


Adopt 


15A NCAC 2D .0301 


Amend 


15A NCAC 2D .0302 


Amend 


15A NCAC 2D .0304 


Amend 


17 NCAC IC .0504 


Amend 


17 NCAC IC .0506 


Amend 


19A NCAC 2D .0425 


Amend 


19A NCAC 2D .1101 


Adopt 


19A NCAC 2D .1102 


Adopt 


19A NCAC 2D .1103 


Adopt 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



853 



RULES REVIEW COMMISSION 



Annual Renewal 


19A NCAC 2D .1104 


Adopt 


Change in Ownership 


19A NCAC 2D .1105 


Adopt 


Decertification 


19A NCAC 2D .1106 


Adopt 


Appeals of Denial of Certification 


19A NCAC 2D .1107 


Adopt 


Goals 


19A NCAC 2D .1108 


Adopt 


Counting Participation 


19ANCAC 2D .1109 


Adopt 


Non-Attainment of Goals 


19A NCAC 2D .1110 


Adopt 


Performance Related Replacement 


19A NCAC 2D .1111 


Adopt 


Replacement 


19A NCAC 2D .1112 


Adopt 


TRANSPORTATION/PUBLIC TRANSPORTATION & RAIL DIVISION 




Definition of Program 


19A NCAC 6B .0401 


Adopt 


Identifying Information 


19A NCAC 6B .0402 


Adopt 


Funding Recipients 


19A NCAC 6B .0403 


Adopt 


Eligible Costs 


19A NCAC 6B .0404 


Adopt 


Ineligible Costs 


19A NCAC 6B .0405 


Adopt 


Application 


19A NCAC 6B .0406 


Adopt 


County & City Certification 


19A NCAC 6B .0407 


Adopt 


Required Easement Certifications 


19A NCAC 6B .0408 


Adopt 


Industry Certification 


19A NCAC 6B .0409 


Adopt 


Application Evaluation 


19A NCAC 6B .0410 


Adopt 


Allocation of Funding 


19ANCAC 6B .0411 


Adopt 


Procurements 


19A NCAC 6B .0412 


Adopt 


Requests for Reimbursement 


19A NCAC 6B .0413 


Adopt 


Retainage 


19A NCAC 6B .0414 


Adopt 


Ownership 


19A NCAC 6B .0415 


Adopt 


Reporting Requirements 


19A NCAC 6B .0416 


Adopt 


Repayment 


19A NCAC 6B .0417 


Adopt 


NC PSYCHOLOGY BOARD 






Practice by Nonresident 


21 NCAC 54 .1610 


Adopt 


Temporary License 


21 NCAC 54 .1703 


Amend 


Types 


21 NCAC 54 .1901 


Amend 


Corporate Name 


21 NCAC 54 .2201 


Repeal 



RULES REVIEW OBJECTIONS 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Environmental Management 

15A NCAC 2B .0101 - General Procedures 

15A NCAC 2B .0103 - Analytical Procedures 

15A NCAC 2B .0109 - Waters Affected by Dredge and Fill Activities 

15A NCAC 28 .0201 - Antidegradation Policy 

15 A NCAC 2B .0202 - Definitions 

15A NCAC 2B .0216 - Fresh Surface Water Quality Standards for Ws-iv Waters 

Agency Revised Rule 
15A NCAC 28 .0231 - Wetland Standards (Rule .0231 was Noticed as Rule .0220) 
15A NCAC 2D .0501 - Compliance with Emission Control Standards 

Agency Revised Rule 
15A NCAC 2D .0608 - Program Schedule 

Agency Revised Rule 
15A NCAC 2D .0901 - Definitions 

Agency Revised Rule 
15 A NCAC 2D .0926 - Bulk Gasoline Plants 

Agency Revised Rule 



854 



NORTH CAROLINA REGISTER 



RRC Objection 


07/18/96 


RRC Objection 


07/18/96 


RRC Objeaion 


07/18/96 


RRC Objeaion 


07/18/96 


RRC Objection 


07/18/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


20) RRC Objection 


07/18/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objeaion 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objeaion 


06/20/96 


Obj. Removed 


06/20/96 


August 15, 1996 


11:10 



RULES REVIEW COMMISSION 



15A NCAC 2D .0934 - Coating of Miscellaneous Metal Parts and Products 

Agency Revised Rule 
15A NCAC 2D .1109 - Case-by-Case Maximum Achievable Control Technology 

Agency Revised Rule 
15A NCAC 2H .0219 - Minimum Design Requirements 

Rule Returned to Agency 

Agency Filed Ride for Codification Over RRC Objection 
15A NCAC 2H .0501 - Purpose 
15A NCAC 2H .0502 - Application 
15A NCAC 2H .0503 - Public Notice 
15A NCAC 2H .0504 - Hearing 

15A NCAC 2H .0506 - Criteria for Review of Applications 
15 A NCAC 2H .0507 - Issuance of Certification 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 

RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



Eff 



06/20/96 
06/20/96 
06/20/96 
06/20/96 
04/18/96 
05/16/96 
06/01/96 
07/18/96 
07/18/96 
07/18/96 
07/18/96 
07/18/96 
07/18/96 



Commission for Health Services 

15A NCAC 13B . 1406 - Operational Requirements for Solid Waste Compost Facilities RRC Objection 04/18/96 

Agency Revised Rule Obj. Cont'd 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency FUed Rule for Codification Over RRC Objection Eff 06/01/96 

15A NCAC 13B . 1407 - Classification/Distribution of Solid Waste Compost Products RRC Objection 04/18/96 

Agency Revised Rule Obj. Cont'd 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 13B . 1408 - Methods for Testing and Reporting Requirements RRC Objection 04/18/96 

Agency Revised Rule Obj. Cont'd 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 138 . 1409 - Approval of Alternative Procedures and Requirements RRC Objection 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 18A .3106 - Abatement RRC Objection 07/18/96 



Wildlife Resources Commission 

15A NCAC lOF .0104 - Certificate of Number 
15A NCAC lOF .0105 - Numbering Pattern 
15A NCAC lOF .0342 - Catawba County 
Rule Withdrawn by Agency 



RRC Objection 
RRC Objection 



07/18/96 
07/18/96 

07/18/96 



HUMAN RESOURCES 



Social Services Commission 

10 NCAC 41 F .0707 - Criminal Histories 

10 NCAC 41 F .0813 - Criminal History Checks 

10 NCAC 41F .0814 - Training Requirements 

MEDICAL BOARD 

21 NCAC 32H .0702 - Requests 
No Response from Agency 
Rule Returned to Agency for Failure to Respond Pursuant to G.S. 1508-21. 12 

STATE BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS 

21 NCAC 37H .0102 - Continuing Education Programs of Study 

BOARD OF PHARMACY 

21 NCAC 46 . 1601 - Pharmacy Permits 

Agency Revised Rule 
21 NCAC 46 .1607 - Out-of State Pharmacies 



RRC Objection 


07/18/96 


RRC Objection 


07/18/96 


RRC Objection 


07/18/96 


RRC Objection 


04/18/96 


Obj. Cont'd 


05/16/96 


Obj. Cont'd 


06/20/96 


RRC Objection 


07/18/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



855 



RULES REVIEW COMMISSION 



Rule Witlidrawn by Agency 
21 NCAC 46 .1811 - Excessive Dispensing of Prescription Drugs 

Agency Revised Rule 
21 NCAC 46 .2502 - Responsibilities of Pharmacist-Manager 

Agency Revised Rule 
21 NCAC 46 .2504 - Patient Counseling 

Agency Revised Rule 

REAL ESTATE COMMISSION 

21 NCAC 58A .0104 - Agency Agreements and Disclosure 

Agency Revised Rule 
21 NCAC 58A .0113 - Reporting Criminal Convictions 

Agency Revised Rule 
21 NCAC 58A .0502 - Business Entities 

Agency Revised Rule 
21 NCAC 58A .0610- Subpoenas 

Agency Revised Rule 
21 NCAC 58E .0302 - Elective Course Component 

Agency Responded 





06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


07/18/96 


RRC Objection 


06/20/96 


Obj. Removed 


07/18/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


07/18/96 


RRC Objection 


06/20/96 


Obj. Cont'd 


07/18/96 



856 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge by 
contacting the Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JUUAN MANN, HI 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRATIVE LAW JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Osama Arafat Sadar v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control CommiBsion v. James Eads Sprowles 

Fuad Saif Murshed v. Ale. Bev. Ctl. Comm. & Durham Mem. Bapt. Ch. 

Alcoholic Beverage Control Commission v. Tremik, Inc. 

Alcoholic Beverage Control Commission v. Maria Virginia Tramontano 

Alcoholic Beverage Control Commission v. Huffman Oil Co., Inc. 

Pinakin P. Talate v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Entrepreneur, Inc. 

Alcoholic Beverage Control Commission v. Zell, Inc. 

Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 

Andrew Parker v. Alcoholic Beverage Control Commission 

Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 

Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 

Bro Bee, Inc. v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Donald Ray Doak 

Alcoholic Beverage Control Conmiission v. Janice Lorraine Jeter 

Alcoholic Beverage Control Commission v. Well Informed. Inc. 

Alcoholic Beverage Control Commission v. Kubbard, Inc. 

Alcoholic Beverage Control Commission v. Slemmermans's, Inc. 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Commission v. Robert Montgomery McKnight96 

Gerald Audry Sellars v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 

Alcoholic Beverage Control Commission v. Factory Night Club, Inc. 

Alcoholic Beverage Control Commission v. C.N.H. Enterprises, Inc. 

Alcoholic Beverage Control Commission v. Millicenl J. Green 

Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 

Alcuoholic Beverage Control Commission v. Triangle Drive-In 

Alcoholic Beverage Control Commission v. James Eads Sprowles 



95 ABC 0721 


Gray 


07/09/96 




95 ABC 0883*' 


Gray 


07/10/96 




95 ABC 0922 


Chess 


04/24/96 




95 ABC 0925 


Morrison 


03/25/96 




95 ABC 


1200 


West 


04/23/96 




95 ABC 


1251 


West 


04/03/96 


1;03 NCR 166 


95 ABC 


1329 


West 


04/10/96 




95 ABC 


1363 


Reilly 


05/02/96 




95 ABC 


1366 


West 


06/17/96 




95 ABC 


1389 


West 


04/01/96 




95 ABC 


1402 


Phipps 


03/27/96 




95 ABC 


1424 


Phipps 


04/03/96 




95 ABC 


1443 


West 


03/26/96 




95 ABC 


1444 


Gray 


03/13/96 




95 ABC 


1480 


West 


04/15/96 




95 ABC 


1488 


West 


03/29/96 




96 ABC 0013 


Reilly 


04/26/96 




96 ABC 0016 


Chess 


05/28/96 




96 ABC 0017 


Reilly 


05/20/96 




96 ABC 0018 


Chess 


05/28/96 




96 ABC 0058 


Becton 


04/16/96 




96 ABC 0135 


Phipps 


05/09/96 




96 ABC 0160 


Becton 


06/25/96 11:08 NCR 564 


96 ABC 0184 


Phipps 


05/09/96 




96 ABC 0226 


Phipps 


08/02/96 




96 ABC 0232 


Becton 


07/09/96 




96 ABC 0234 


Nesnow Smith 


06/13/96 




96 ABC 0256 


Morrison 


05/23/96 




96 ABC 0443 


Reilly 


06/11/96 




96 ABC 0526*' 


Gray 


07/10/96 





11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



857 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NTUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



CONBVnSSION FOR AUCTIONEERS 

John W. Foster v. Auctioneer Licensing Boartl 
CRIME CONTROL AND PUBLIC SAFETY 



96 CFA 0201 Phipps 



Roland Lcc Kelly, Jr. v. United Family Se^^ices, Victim Assistance/Crime 95 

Victims Compensation Comm. 
Robert F. Bronsdon \ . Crime Victims Compensation Commission 
Helen B. Hunter-Reid v. Crime Victims Compensation Commission 
Deborah C. Passarelli v. Crime Victims Compensation Commission 
Kenneth Saunders v. Victims Compensation Commission 
Franklin McCoy Jones v. Crime Victims Compensation Commission 
Ruby H. Ford v. Crime Victims Compensation Commission 
Manuel Cervantes v. Victims Compensation Fund 
Sheila Carol Blake v. Victims Compensation Commission 
James T. Mungo v. Victims Compensation Commission 
Donna Williams v. Crime Victims Compensation Commission 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 



Cribble & Assoc. & Four Seasons Car Wash v. EHNR 

Wilton Evans v. Environment, Health, & Natural Resources 

David Martin Shelton v. Rockingham County Dept/Public Health. EHNR 

Kinston Urological Associates. P. A. v. N.C. Cancer Program 

Kinston Urological Associates. P. A. v. N.C. Cancer Program 

Elsie &. Tony Cecchini v. Environment. Health. &. Natural Resources 

United Organics Corporation v. En%'ironment. Health. &. Natural Res. 

Gerald Mac Clamrock v. Environment. Health, &. Natural Resources 



05/06/96 



95 CPS 0568 


Morrison 


05/29/96 






95 CPS 1216 


Chess 


05/28/96 






95 CPS 1336 


Nesnow Smith 


03/29/96 


11:02 NCR 


93 


95 CPS 1399 


ReiUy 


07/18/96 


11:09 NCR 


814 


95 CPS 1445 


Chess 


03/26/96 






96 CPS 0056 


Nesnow Smith 


07/03/96 






96 CPS Olio 


ReiUy 


04/18/96 






96 CPS 0118 


Chess 


03/19/96 






96 CPS 0280 


West 


07/10/96 






95 CPS 0333 


Reilly 


07/09/96 






96 CPS 0493 


Morrison 


06/13/96 







95 EHR 0576 


Gray 


04/25/96 






95 EHR 0843 


Reilly 


07/17/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*= 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0064 


Nesnow Smith 


07/01/96 






96 EHR 0168 


Phipps 


05/06/96 







Coastal Resources 

Martin W. Synger v. Division of Coastal Management 95 EHR 1006 Chess 05/13/96 

J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 Nesnow Smith 02/23/96 

Theodore D. Harris V. Town of Long Beach. NC & Coastal Mgmt. EHNR 96 EHR 0277 West 05/09/96 

Environmental Health 



Forest Gate Motel v. Environment, Health, and Natural Resources 
Paradise Ridge Home Owners by Anne Norbum v. EHNR, Env. Health 

Environmental Management 



96 EHR 0076 West 
96 EHR 0162 Phipps 



Herman E. Smith v. Division of Environmental Management 
Conover Lumber Co.. Inc. v. EHNR. Division of Environmental Mgmt. 
Jack West d/b/a Jack West Tree Service v. Environmental Mgmt. Comm. 
The Smithfield Packing Co., Inc.. v. EHNR. Environmental Mgmt. 
and 
Citizens for Clean Industry, Inc. and Bladen Environment 
Clover M Farms. Inc. v. EHNR, Division of Environmental Management 96 EHR 0405 Becton 



95 EHR 0962 West 

95 EHR 1081 Reilly 

95 EHR 1421 Morrison 

95 EHR 1474 West 



Land Resources 

K&G Properties. Inc. v. EHNR. Division of Land Resources 

Marine Fisheries 



95 EHR 1078 Nesnow Smith 



06/17/96 
05/06/96 



04/30/96 
04/12/96 
04/08/96 
07/03/96 



06/10/96 



03/25/96 



Robert 1. Swinson. Sr. v. EHNR. Health &, Nat. Res.. Marine Fisheries 
Grayden L. Fulcher and Michael Styron. Sr. v. Div. of Marine Fisheries 

Solid Waste Management 

R. Donald Phillips v. EHNR. Solid Waste Management Division 
R. Donald Phillips v. EHNR, Solid Waste Management Division 

W'/C Program 

Lazelle Marks v. EHNR. Division of Maternal and Child Health 



95 EHR 0320 Chess 

96 EHR 0003 Reilly 



95 EHR 1190*^ Gray 

96 EHR 0554** Gray 



95 EHR 0870 West 



03/29/96 
03/06/96 



05/22/96 
05/22/96 



03/27/96 



11:03 NCR 168 



858 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



96 EHR 0054 
96 EHR 0091 
96 EHR 0164 
96 EHR 0632 
96 EHR 0721 



91 EEC 1101 



95 DHR 1410 

96 DHR 0167 



Hani Sader v. Nutrition Services, Div/Materaal & Child Health, EHNR 
Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 
Larry E. Mis v. USDAFood/Cons Svc, Cory Menees-WIC Prog., EHNR 
Naser H. Hammad v. Environment, Health, & Natural Resources 
Khaled M. Alzer v. Environment, Health, & Natural Resources 

EQUAL EMPLOYMENT OPPORTUNITIES 

Carl D. Davis v. Department of Correction 

HUMAN RESOURCES 

Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 
Medicus Robinson v. Department of Human Resources 

Division of CMld Development 

Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Mary T. Hill v. DHR, Division of Child Development 
lola Roberson v. DHR, Division of Child Development 



Division of Facility Services 

Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 

Certificaie of Need Section 

Nash Hospitals, Inc. v. DHR, Div/Facility Services, Cert, of Need Sect. 
Pitt ay Mem. Hospital, Inc. v. DHR, Div/Facility Sries, Cert/Need Sect. 

Group Care Licensure Section 

Alex L. McCall v. DHR, Div/Facility Svcs, Group Care Licensure Sec. 

Medical Facilities Licensure Section 



West 

Nesnow Smith 
Phipps 
Reilly 
Reilly 



Nesnow Smith 



Phipps 
Nesnow Smith 



Phipps 



05/22/96 
04/02/96 
03/19/96 
07/09/96 
07/30/96 



05/06/96 



03/28/96 
04/12/96 



94 DHR 0872*' 


Gray 


05/15/96 


95 DHR 1013*' 


Gray 


05/15/96 


95 DHR 1 192 


Phipps 


03/27/96 


95 DHR 1244 


Gray 


05/16/96 



03/07/96 



95 DHR \\16*^ 


Phipps 


05/23/96 


11:06 NCR 389 


95 DHR 1177** 


Phipps 


05/23/96 


11:06 NCR 389 



95 DHR 1456 Nesnow Smith 



03/26/96 



Deborah Reddick v. Department of Human Resources 96 DHR 0240 

Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 96 DHR 0358 

Division of Medical Assistance 

Judy Malcuit, Re Melissa Malcuit v. DHR, Div. of Medical Assistance 96 DHR 0129 

Division of Social Services 

Crystean Fields v. Department of Human Resources 

Rozena Chambliss v. Department of Human Resources 

Addle & Major Short v. Department of Human Resources 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 

William G. Fisher v. DHR, Div. of Social Services, Prog Integrity Branch 95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 

Nancy Hooker. Helen Tyndall v. Department of Human Resources 



Child Support Enforcement Section 

Donald E. Rideout Jr. v. Department of Human Resources 
Christopher F. Roakes v. Department of Human Resources 
Claude Eure Jr. v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joselito D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee 21apata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. CofTey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 



Reilly 
Morrison 



Gray 



06/18/96 

05/16/96 



06/12/96 



95 DHR 1001 


Gray 


07/05/96 


95 DHR 1044 


Nesnow Smith 


03/12/96 


95 DHR 1063 


Morrison 


03/19/96 


95 DHR 1072 


Phipps 


03/15/96 


95 DHR 1234 


Morrison 


03/19/96 


95 DHR 1330 


Gray 


04/11/96 


96 DHR 0155 


Gray 


04/26/96 



95 CSE 0952 


Reilly 


04/18/96 


95 CSE 


1131 


Becton 


05/03/96 


95 CSE 


1155 


Phipps 


06/12/96 


95 CSE 


1169 


Becton 


03/19/96 


95 CSE 


1180 


Chess 


03/01/96 


95 CSE 


1218 


Morrison 


03/26/96 


95 CSE 


1221 


Nesnow Smith 


03/05/96 


95 CSE 


1230 


Becton 


03/11/96 


95 CSE 


1266 


Gray 


05/02/96 


95 CSE 


1267 


Morrison 


03/29/96 


95 CSE 


1270 


Nesnow Smith 


03/15/96 


95 CSE 


1273 


Phipps 


04/01/96 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



859 



CONTESTED CASE DECISIONS 



AGENCY 



Lonnie Dawce v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resource* 
Vincent E. Koehler v. Department of Human Resources 
David J- Moselcy v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwer v. Department of Human Resources 
Thornell Bowden v. Department of Human Resources 
Henry S. Sada v. Department of Human Resources 
Charles F. Moore v. Department of Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
Kenneth L. Lindsey v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 
Cynthia Pinder v. Department of Human Resources 
Rhonnie J. Williams v. Department of Human Resources 
Ramon Domenech v. Department of Human Resources 
Dennis L. McNeill v. Department of Human Resources 
Tony A. Rogers v. Department of Human Resources 
Rick E. Atkins v. Department of Human Resources 
Timothy A. Ratley (Jeanes) v. Department of Human Resources 
Richard E. Reader v. Department of Human Resources 
Wendel McDonald v. Department of Human Resources 
Wilbur Dewayne Baull v. Department of Human Resources 
James C. Smith v. Department of Human Resources 
Ronald D. Johnson v. Department of Human Resources 
Johnny Leary v. Department of Human Resources 
Jimmy Strickland v. Department of Human Resources 
John W. Scott V. Department of Human Resources 
Calvin S. Austin v. Department of Human Resources 
Derek Henslee v. Department of Human Resources 
Donald L. Carr, Jr. v. Department of Human Resources 
Norman Waycaster v. Department of Human Resources 
Lorenzo Wilson v. Department of Human Resources 
Mark Kevin Burns v. Department of Human Resources 
Cyril Lloyd Payne v. Department of Human Resources 
Charles H. Johnson v. Department of Human Resources 
Willie James Myers v. Department of Human Resources 
Christopher F. Byrne v. Department of Human Resources 
Richard Painal! Burch v. Department of Human Resources 
Charles Gillispic v. Department of Human Resources 
Teresa Reynolds v. Department of Human Resources 
Thornell Bowden v. Department of Human Resources 
Kenneth Edward Bums v. Department of Human Resources 
Carl R. Ritter v. Department of Human Resources 
William Charles Rorie v. Department of Human Resources 
Leon Gibson v. Department of Human Resources 
Dioni Delvalle, n v. Department of Human Resources 
Gerald Roger Beachum Jr. v. Department of Human Resources 
Daniel J. Carter v. Department of Human Resources 
Kelvin Tarlton v. Department of Human Resources 
Steven Craig Mooney v. Department of Human Resources 
John L. Cherry Jr. v. Department of Human Resources 
Arthur Jemerson v. Department of Human Resources 
Michael S. Covington v. Department of Human Resources 
Terry Sealey v. Department of Human Resources 
Jackie L. Kopczick v. Department of Human Resources 
Virginia McDowell Ramsey v. Department of Human Resources 
D. Wayne Gray v. Department of Human Resources 
Claude R. Anderson v. Department of Human Resources 
Alan Kendell Locklear v. Department of Human Resources 
James Trevor Emerson v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


95 CSE 


1274 


Nesnow Smith 


06/12/96 


95 CSE 


1278 


Neanow Smith 


03/14/96 


95 CSE 


1280 


Chess 


03/19/96 


95 CSE 


1296 


Chess 


03/15/96 


95 CSE 


1301 


Phipps 


05/09/96 


95 CSE 


1304 


Chess 


03/29/96 


95 CSE 


1308 


Reilly 


03/13/96 


95 CSE 


1309 


West 


03/07/96 


95 CSE 


1315 


Phipps 


05/06/96 


95 CSE 


1331 


Bccton 


03/26/96 


95 CSE 


1345 


Morrison 


03/07/96 


95 CSE 


1367 


Nesnow Smith 


03/21/96 


95 CSE 


1369 


Chess 


03/27/96 


95 CSE 


1373 


Morrison 


03/12/96 


95 CSE 


1375 


West 


06/24/96 


95 CSE 


1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 


03/11/96 


95 CSE 


1380 


Mann 


03/15/96 


95 CSE 


1382 


Reilly 


04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 


95 CSE 


1406 


Becton 


03/11/96 


95 CSE 


1407 


Chess 


05/06/96 


95 CSE 


1408 


Phipps 


03/11/96 


95 CSE 


1435 


Becton 


03/13/96 


95 CSE 


1436 


Chess 


05/16/96 


95 CSE 


1437 


Phipps 


04/01/96 


95 CSE 


1465 


Morrison 


03/26/96 


95 CSE 


1469 


Nesnow Smith 


04/29/96 


95 CSE 


1470 


Becton 


07/29/96 


95 CSE 


1475 


West 


03/13/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 0085 


Becton 


05/03/96 


96 CSE 01 19 


Chess 


07/08/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0200 


West 


05/30/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0271 


Morrison 


06/24/96 


96 CSE 0272 


Reilly 


05/31/96 


96 CSE 0295 


West 


07/15/96 


96 CSE 0299 


Becton 


07/19/96 


96 CSE 0336 


Chess 


06/26/96 


96 CSE 0339 


Phipps 


06/27/96 


96 CSE 0365 


Mann 


07/23/96 


96 CSE 0369 


Gray 


07/23/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0379 


Reilly 


07/18/96 


96 CSE 0380 


West 


05/08/96 


96 CSE 0388 


Nesnow Smith 


08/01/96 


96 CSE 0389 


Becton 


07/02/96 


96 CSE 0407 


Chess 


07/17/96 


96 CSE 0411 


Phipps 


06/24/96 


96 CSE 0417 


Gray 


06/24/96 


96 CSE 0424 


Morrison 


05/29/96 


96 CSE 0425 


Reilly 


07/08/96 


96 CSE 0426 


West 


06/24/96 


96 CSE 0427 


Nesnow Smith 


08/01/96 


96 CSE 0428 


Becton 


08/02/96 


96 CSE 0430 


Phipps 


05/29/96 


96 CSE 0431 


Mann 


06/05/96 


96 CSE 0464 


Gray 


08/02/96 


96 CSE 0465 


Morrison 


08/02/96 


96 CSE 0502 


Reilly 


07/22/96 


96 CSE 0503 


West 


05/30/96 


96 CSE 0545 


Phipps 


07/25/96 



PUBLISHED DECISION 
REGISTER CITATION 



860 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



CONTESTED CASE DECISIONS 



AGENCY 



Hazel L. Walker v. Department of Human Resources 
Carl S. McNair v. Department of Human Resources 
David Agurs v. Department of Human Resources 
Dave L. James v. Department of Human Resources 
Franklin D. Deese v. Department of Human Resources 
Melinda S. Tunner v. Department of Human Resources 
Jeanne G. Bishop v. Department of Human Resources 
Rebecca Beaver v. Department of Human Resources 
Vivian B. White v. Department of Human Resources 
Mary R. Mahon v. Department of Human Resources 
Mary R. Mahon v. Department of Human Resources 
Laura Heidorf v. Department of Human Resources 
Lois Hoyd Barber v. Department of Human Resources 

INSURANCE 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


96 CSE 0559 


West 


06/24/96 


96 CSE 0568 


Becton 


06/24/96 


96 CSE 0580 


Chess 


06/13/96 


96 CSE 0638 


West 


07/15/96 


96 CSE 0690 


Mann 


07/23/96 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 1114 


Reilly 


04/26/96 


95 DCS 1115 


Phipps 


06/04/96 


95 DCS 1137*' 


Chess 


06/11/96 


95 DCS 1142*' 


Chess 


06/11/96 


96 DCS 0065 


Reilly 


03/22/96 


96 DCS 0176 


Gray 


07/30/96 



PUBLISHED DECISION 
REGISTER CITATION 



Carol M. Hall v. Teachers & Slate Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempsey v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 

Deborah B. Beavers v. Teachers & St. Emp. Comp. Major Med. Plan 95 INS 1411 Nesnow Smith 05/10/96 

Nadia A. Hakim v. Department of Insurance 95 INS 1422 Nesnow Smith 03/26/96 



11:05 NCR 308 



JUSTICE 



Education and Training Standards Division 



Freddie Levem TTiorapson v. Criml. Justice Ed. & Training Stds. Comm. 

Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 

Charles Henry Daniels v. Criml. Justice Ed. &. Training Stds. Comm. 

Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm. 

Patricia Josephine Bonanno v. Sheriffs' Ed. Sc Training Stds. Comm. 

Douglas Allan Stuart v. Sheriffs* Ed. & Training Stds. Comm. 

Rick M. Evoy v. Criminal Justice Ed. «fe Training Stds. Comm. 

Windell Daniels v. Criminal Justice Ed. & Training Stds. Comm. 

Gregory Lee Daughtridge v. Sheriffs* Ed. & Training Stds. Comm. 

Stuart Hugh Rogers v. Sheriffs' Ed. & Training Stds. Comm. 

Brian Thomas Craven v. Sheriffs' Ed. & Training Stds. Comm. 

Larry D. Weston v. Sheriffs* Ed. Si. Training Stds. Comm. 

Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 

Ken Montie Oxendine v. Criminal Justice Ed. & Training Stds. Comm. 

James Leon Hunt v. Criminal Justice Ed. & Training Stds. Comm. 

David Kent Knight v. Sheriffs' Ed. &. Training Stds. Comm. 

Jimmie L. Cooper v. Sheriffs' Ed. & Training Stds. Comm. 

Jerry Glenn Monettc v. Sheriffs' Ed. & Training Stds. Comm. 

George Willie Gilliam v. Sheriffs' Ed. & Training Stds. Comm. 



95 DOJ 0731 


Chess 


02/29/96 


95 DOJ 0943 


Reilly 


05/17/96 


95 DOJ 1070 


West 


06/12/96 


95 DOJ 1129 


Nesnow Smith 


04/12/96 


95 DOJ 1152 


Chess 


03/25/96 


95 DOJ 1189 


Morrison 


06/06/96 


95 DOJ 1235 


Chess 


03/25/96 


95 DOJ 1320 


Gray 


07/24/96 


96 DOJ 0027 


Reilly 


03/19/96 


96 DOJ 0029 


West 


06/18/96 


96 DOJ 0036 


Gray 


07/09/96 


96 DOJ 0037 


Nesnow Smith 


06/12/96 


96 DOJ 0068 


Gray 


03/26/96 


96 DOJ 0071 


West 


03/28/96 


96 DOJ 0077 


Phipps 


07/25/96 


96 DOJ 0115 


West 


03/28/96 


96 DOJ 0352 


Morrison 


07/12/96 


96 DOJ 0420 


Morrison 


07/26/96 


96 DOJ 0656 


Morrison 


08/02/96 



11:10 NCR 874 



Private Protective Services Board 



Timothy A. Hawkins v. Private Protective Services Board 
William F. Combs v. Private Protective Services Board 
Randy C. Hoyle v. Private Protective Services Board 
Robert A. Gibson v. Private Protective Services Board 
Jimmy D. Matthews v. Private Protective Services Board 
Johnnie Lee King v. Private Protective Services Board 
Thomas R. Harris v. Private Protective Services Board 



95 DOJ 1419 


West 


04/12/96 


96 DOJ 0022 


West 


03/22/96 


96 DOJ 0024 


Nesnow Smith 


06/10/96 


96 DOJ 0386 


Nesnow Smith 


07/03/96 


96 DOJ 0676 


Reilly 


07/11/96 


96 DOJ 0677 


Reilly 


07/11/96 


96 DOJ 0761 


Reilly 


07/11/96 



MEDICAL BOARD 



Medical Board v. Martin A. Hatcher, M.D. 
PUBLIC INSTRUCTION 



92 BME 0510 



Gray 



06/28/96 



11:08 NCR 555 



Lavem K. Suggs v. NC Board of Education 95 EDC 0383 

J.T.S. & T.S., Parents of E.M.S. v. Chapel Hill-Carrboro City Schl. Sys. 95 EDC 1194 

L.O. V. Chadotte-Mecklenburg Board of Education 96 EDC 0285 

Candyce Ewanda Newsome v. Hertford County Board of Education 96 EDC 0344 

John Barlow v. Watauga County Board of Education 96 EDC 0623 

John L. Archer v. North Carolina Department of Public Instruction 96 EDC 0678 



Nesnow S 


mith 


03/13/96 


11:01 NCR 


50 


Mann 






04/12/96 






Mann 






05/31/96 






Chess 






05/15/96 






Reilly 






07/24/96 






Nesnow 


S 


mith 


08/02/96 







11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



861 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



STATE PERSONNEL 

Department of Administration 

Jimmic A. Hughes, Jr. v. Department of Administration 96 OSP 0008 

Jonathan L. Fann v. Department of Administration, Admin. Personnel 96 OSP 0042 

Carlton Gerald v. State Capitol Police, Department of Administration 96 OSP 0116 

Administrative Office of the Court 

Ethel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 OSP 0080 

Appalachian State University 

Janice S. Walton v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 

Caldwell County 

Blake C. Pace v. Caldwell County 96 OSP 0047 

Caswell Correctional Center 

Timothy L. Willis v. Caswell Correctional Center 96 OSP 0715 

NC Central University 

Francina Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 95 OSP 1432 

Central North Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 95 OSP 1241 

Cherry Hospital 

Maiy A. Boogaerts v. Cherry Hospital, Goldsboro, NC 96 OSP 0269 

Department of Correction 

Haydee Craver v. Department of Correction, Pender Correctional Inst. 95 OSP 1046 

Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyette 95 OSP 1290 

Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 OSP 1460 

Alisha Louise Staley v. Randolph Correctional Center 96 OSP 0092 

Brenda Propst v. Foothills Correctional Institution 96 OSP 0199 

Delon D. Solomon v. Department of Correction 96 OSP 0258 

Haydee C. Craver v. Department of Correction. Christopher Phillips 96 OSP 0348 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0372** 

v. Department of Correction 

Dwighi Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 037.'i*» 

V. Department of Correction 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0374*' 

V, Department of Correction 

Dwighi Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0375*' 

V. Department of Correction 

Dwighi Taylor. Mike E.slep, Jackie Boone, Robert Pitman, Jeffery Clark 96 OSP 0376*' 

V. Department of Correction 

Department of Crime Control and Public Safety 

Gene Wells v. Crime Control & Public Safety, State Highway Patrol 
Gene Wells v. Crime Control & Public Safety, Slate Highway Patrol 

Durfuun County Health Department 

Lylla D. Stockton v. Durham County Health Department 



Reilly 


07/23/96 


Gray 


05/24/96 


Gray 


04/25/96 



Nesnow Smith 



West 
West 



Morrison 



West 



Nesnow Smith 



Chess 



Becton 



95 OSP 0249*' 
95 OSP 1050*' 



95 OSP 0176 



Nesnow Smith 
Nesnow Smith 



West 



03/15/96 



03/13/96 
03/07/96 



04/01/96 



07/30/96 



04/22/96 



05/17/96 



05/29/96 



Gray 


03/12/96 


Phipps 


05/14/96 


Gray 


05/17/96 


Gray 


06/03/96 


Morrison 


04/09/96 


West 


07/02/96 


Phipps 


05/15/96 


Nesnow Smith 


07/05/96 


Ne,sm'v\ Smith 


07/05/96 


Nesnow Smith 


07/05/96 


Nesnow Smith 


07/05/96 


Nesnow Smith 


07/05/96 



07/23/96 
07/23/96 



07/02/96 



862 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Gray 


03/13/96 


Chess 


06/17/96 


Reilly 


07/09/96 


Reilly 


07/09/96 



East Carolina University 

Bcla E. Kaivaly, Ph.D. v. ECU Bd. of Trustees, Ch. Richard R. Eakin 96 DSP 0150 Chess 

Employment Security Commission 

Gene S. Baker v. Gov. James B. Hunt, Jr., Ann Q. Duncan, Chairman, 93 OSP 0707 

Employment Security Commission 

William Herbert Allen v. Employment Security Commission 94 OSP 1688 

Patricia Gary v. Employment Security Commission 95 OSP 0793 

Tonderlier Lynch v. Emp. Security Comm., Austin Quality Foods, Inc. 96 OSP 0275 

Department of Environment, Health, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, & Natural Resources 95 OSP 0035 Reilly 

FayettevilU State University 

William C. Neal v. Fayetteville State University 95 OSP 0392 Nesnow Smith 

Guilford County Area Mental Health, Developmental Disabilities and Substance Abuse 

Stuart Klatle v. Guilford Cty Area MH/DD/SAS, St. Per Comm, OSP 95 OSP 1179 Nesnow Smith 

Department of Human Resources 

Ophelia Webb v. Edard R. Inman, Dir. Alamance Cty OSS, Alamance 96 OSP 0112 

Cty DSS, Alamance County, and DHR 

Gail Marie Rodgers Lincoln v. DHR, DMH/DD/SAS-Cherry Hosp., 96 OSP 0159 

Cherry Hospital 

Johnny Earl Young v. Unit Head Director of Food & Nutrition 96 OSP 0543 

Johnny Earl Young v. Unit Head Director of Food & Nutrition 96 OSP 0590 

Caswell Center 

Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 0411 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 
Franklin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 

Durham County Department of Social Services 
Jan E. Smith v. Durham County Department of Social Services 95 OSP 1121 

Halifax County Department of Social Ser\ices 
Clairbel Thomas v. Halifax County DSS & Director, Halifax County DSS 95 OSP 0905 West 

Division of Medical Assistance 
Harold Wiggins v. Division of Medical Assistance 95 OSP 1482 West 

O 'Berry Center 
Samuel Geddie v. O'Berry Center 96 OSP 0414 Morrison 

Rockingham County Department of Social Services 
Lorrctta Lawson v. Rockingham County DSS 96 OSP 0471 West 

V/ake County Department of Social Services 
Phylis Gilbert v. Wake County Department of Social Services 95 OSP 1238 Phipps 

Department of Insurance 
Larry W. Creech v. Department of Insurance 95 OSP 0631 Reilly 



05/08/96 



Becton 


05/16/96 


11:05 NCR 300 


West 


06/11/96 




Chess 


05/14/96 




Chess 


05/21/96 





Becton 
Becton 
Nesnow Smith 



Morrison 



04/09/96 



04/22/96 



07/19/96 



03/26/96 
03/26/96 
03/21/96 



05/24/96 



05/29/96 



06/11/96 



06/13/96 



06/13/96 



06/27/96 



06/06/96 



11:10 NCR 865 



1 1 :02 NCR 89 



11:06 NCR 395 



11:07 NCR 434 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



863 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Labor 

Kevin P. Kolbe, Sr. v. Department of Labor 

New Hanover County Board of Health 

Tabaadeh Zand v. New Hanover County Board of Health 

Sandhill Community College 

Earl Levon Womack v- Sandhill Community College Bd. of Trustees 

North Carolina State University 

Vemell Mitchell v. North Carolina Cooperative Extension 

Department of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. Grays v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Lisa Ann Lee v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. State Highway Maint., Guess Rd., Durham, NC 

Archie Brooks v. W. F. Rosser, Department of Transportation 

Tri-County Mental Health Complex 

Deborah Heil v. Tri-County Mental Health Complex 

University of North Carolina 

Pamela B. Edwards v. University of North Carolina at Chapel Hill 
Keith R. Cameron v. University of North Carolina at Chapel Hill 
Jerel H Bonner v. School of Nursing UNC at Chapel Hill 
Bela E. Karvaly, Ph.D. v. UNC Bd. of Gov., Pres. CD. Spangler. Jr. 
Carl E. Whigham v. UNC Hospitals at Chapel Hill 

STATE TREASURER 

Donald B. Durham v. Teachers' & St. Employees Retirement Sys. 

UNIVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 
James E. Boudwin v. University of NC Hospitals at Chapel Hill 
Marcia Spruill v. UNC Hospitals - Patient Accounts 



95 OSP 0968 



95 OSP 1035 



96 OSP 0573 



96 OSP 0132 



Morrison 



Nesnow Smith 



Pbipps 



Gray 



95 OSP 1100 



92 DST 1066 



Nesnow Smith 



03/14/96 



03/01/96 



07/25/96 



05/10/96 



94 OSP 0589-' 


Gray 


03/01/96 


94 OSP 1044 


Reilly 


04/12/96 


95 OSP 0837*' 


Gray 


03/01/96 


95 OSP 1099 


Reilly 


07/31/96 


95 OSP 1462 


Morrison 


03/08/96 


96 OSP 0048 


Reilly 


05/02/96 


96 OSP 0087 


Gray 


04/15/96 


96 OSP 0239 


Nesnow Smith 


05/17/96 



03/22/96 



Chess 



07/17/96 



96 UNC 0067 


Gray 


04/16/96 


96 UNC 0343 


Chess 


07/22/96 


96 UNC 0500 


Bee ton 


07/10/96 



11:01 NCR 58 



11:03 NCR 173 



95 OSP 0842 


Chess 


06/28/96 






95 OSP 1060 


Morrison 


06/24/96 






96 OSP 0026 


Gray 


03/12/96 


11:01 NCR 


61 


96 OSP 0151 


Chess 


05/08/96 






96 OSP 0248 


Chess 


06/11/96 







11:09 NCR 810 



■*■ Consolidated cases. 



864 



NORTH CAROLINA REGISTER 



August 15, 1996 



11:10 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF GUILFORD 



IN THE OFnCE OF 

ADMINISTRATIVE HEARINGS 

95 0SP 1179 



STUART KLATTE, 
Petitioner, 



GUILFORD COUNTY AREA MENTAL HEALTH, 
DEVELOPMENTAL DISABILITIES AND 
SUBSTANCE ABUSE, AND THE STATE PERSONNEL 
COMMISSION, OFFICE OF STATE PERSONNEL 
Respondent. 



RECOMMENDED DECISION 



This matter was heard in Raleigh, North Carolina on April 3, 19% and May 20, 19%, by Administrative Law Judge 
Dolores Nesnow Smith. The record closed on June 7, 1996. 

APPEARANCES 

For Petitioner: Thomas Moore 

Attorney at Law 
P. O. Box 2975 
Durham, North Carolina 27715 
Attorney for Petitioner 

For Respondents: J. Edwin Pons 

Deputy county Attorney 

Guilford County 

P. O. Box 3427 

Greensboro, North Carolina 27402 

Attorney for Respondent 

Lars F. Nance 

Special Deputy Attorney General 

N. C. Department of Justice 

P. O. Box 629 

Raleigh, North Carolina 27602 

Attorney for Respondent 

ISSUES 

1. Was the Respondent's local personnel system substantially equivalent to the State Personnel Act? 

2. Did the Respondent have just cause to dismiss the Petitioner? 

3. Did the Respondent follow proper procedure in dismissing the Petitioner? 

EXHIBITS 



Petitioner's Exhibits on Substantial Equivalency: P#1SE, 3-6SE, 8SE, lOSE, 22SE, 23SE 
(Designated with "SE") 

Petitioner's Exhibits on Just Cause: P#l-5, 7-9, 12-26 

Respondents' Exhibits on Substantial Equivalency: R#1-5SE 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



865 



CONTESTED CASE DECISIONS 



(Designated with "SE") 

Respondents' Exhibits on Just Cause: R#l-19 

Based upon careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits 
received into evidence, and the entire record in this proceeding, the undersigned makes the following: 

FINDINGS OF FACT 

1. Petitioner, Stuart KJatte, was employed by the Guilford County Area Mental Health Authority, 
Developmental Disabilities and Substance Abuse Program from August 1994 until his dismissal in August of 1995. 

Substantial Equivalency 

2. N.C. Gen. Stat. 126-11 provides that Counties and Area Mental Health Authorities may establish and 
maintain their own personnel system if the State Personnel Commission (SPC) approves that system as being substantially 
equivalent to the State Personnel Act (SPA). That statute further provides that if the local personnel system has been 
approved, the employees of that system shall then be exempt from the provision of the SPA (except for Article 6). 

3. The Guilford County Personnel System as it existed in the early 1980s was approved by the SPC as being 
substantially equivalent to the SPA. 

4. N.C. Admin. Code, Title 25, r. II .1403(a) provides that after a substantial change in the composition 
of the County Board of Commissioners the personnel system must be recertified. 

5. In 1991 there was a significant change in the membership of the Board of Conmiissioners of Guilford 
County. Subsequent to this change, there was no recertification of the agreement. 

6. In 1991, Guilford County changed the disciplinary provisions of its persormel system. Both Iris Robinson 
of Guilford County Personnel and Mike Gatty of the Office of State Persormel (OSP) expressed concerns over the changes 
to the disciplinary system. 

7. Some changes were then made and the Guilford County System was again certified as being substantially 
equivalent to the SPA. 

8. In 1992, the Guilford Area Mental Health Authority (GAMH) elected to bring itself under the Guilford 
County Personnel System. This election was approved in a letter from the OSP to GAMH. 

9. The SPA authorizes the SPC to promulgate rules and regulations to establish the standards for substantially 
equivalent systems. (G.S. 126-1 1(d)). 

10. The SPC has promulgated these rules which are codified at 25 NCAC Oil .1405-. 1410. 

11. Among other things, the rules specifically provide that an employee must receive a statement in writing 
setting forth in numerical order the specific acts or omissions that are the reason for a disciplinary action. 

12. The Guilford System includes the following provision: 

Warnings 

(1) An employee subject to discipline for performance (not conduct) deficiencies should ordinarily first 
be warned by the supervisor or department head in writing as to acts or omissions or manner in 
which work or performance is deficient and what improvement must be shown in order to avoid 
further disciplinary action. 

(2) A written warning shall set forth specific acts or omissions that are the reason for the warning. 
This warning may be included in a performance evaluation. 

13. The State Personnel rules also provide that an employee must be notified of his or her appeal rights. 



866 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



14. The Guilford System includes the following provision: 

Warnings 

(3) An oral warning is not appealable. A written warning may be appealed in writing to the Human 

Resources Director within five days of receipt by the employee. Upon an appeal, the Human 
Resources Director will confer with the employee and department director generally within ten 
work days following receipt of the appeal. The Human Resources Director will then make a 
written decision as to whether the written warning was supported by information available to the 
department director. 

15. While the Guilford System notes that it makes no provision for the issuance of oral warnings, oral warnings 
are not appealable. 

16. The SPA requires that no career State employee may be discharged except for just cause. 

17. The Guilford County Personnel System, while it does not use the words "just cause," does have the 
following provision: 

Disciplinary action may be taken for any appropriate reason, including but not limited to the 
following: inefficiency, negligence or incompetence in the performance of duties; inadequate or 
unacceptable performance of duties; reporting to work under the influence of non-prescription drugs or 
alcohol; discourteous treatment of the public or other employees; misuse or abuse of County property; 
willful disregard of County policies and procedures; habitual unexcused tardiness or absences; fraud or 
misrepresentation in securing employment; conduct unbecoming a County employee; willful and material 
falsification of records; acceptance of gifts in exchange for favors or influence; employment which 
constitutes a conflict of interest; violation of political activity restrictions; unauthorized possession of 
firearms or other dangerous weapons while on duty; unauthorized sleeping on duty; inexcusable neglect 
of duty; and intentional disruption of the workplace. 

18. The State rules at 25 NCAC II .2404(7) contemplate a series of steps as follows: 

Requirement. An impartial grievance procedure which has as its objective the timely and logical 
resolution of all grievances at the lowest practical point in the organization shall be established, with right 
of appeal assured at each step up to the county manager or area director for all appeals not alleging 
discrimination and to the appeals board for all appeals alleging discrimination. To the maximum extent 
possible grievance procedures shall include steps to resolve discrimination and all other types of employee 
grievances without recourse to the formal appeals process represented by the county manager or appeals 
board. 

19. The Guilford procedure provides for a written warning. However, it is not clear whether this warning is 
"by the supervisor" or if the supervisor's warning is a separate warning. 

20. The State rules at 25 NCAC II .2404 provide that the disciplinary writing be filed with the county personnel 
director. The Guilford system does not include this requirement. 

21. While the State rules contemplate steps (i.e., "...appeal assured at each step") the Guilford System provides 
for one level of appeal as follows: 

Within five days of receipt by the employee of a recommendation, he/she may notify the County 
Manager in writing of his/her desire to appear and confer with the County Manager in the presence of the 
department director prior to a decision. Upon such notification, a conference will be held ordinarily within 
ten work days. At the conference, the Manager may seek input from the Human Resources Department, 
County Attorney, or others the Manager deems may have information useful to him/her in reaching a final 
decision. TTie Manager's decision will thereafter be made in writing and given to the employee and 
department director. 



11:10 NORTH CAROLINA REGISTER August 15, 1996 867 



CONTESTED CASE DECISIONS 



22. The State rules require the establishment of an Appeals Board, with specific provisions about the 
composition of the Appeals Board. The Guilford System has no provision for an appeals board. 

23. The State rules require an evidentiary hearing conducted by a hearings examiner. The Guilford System 
has no provisions for an evidentiary hearing. 

24. The State rules provide that the appeals board, in addition to its other duties, shall hear all discrimination 
matters. The Guilford System's discrimination provision states that, in matters of discrimination, the County Manager shall 
choose two disinterested employees to assist him/her. 

■RJST CAUSE 

25. In August of 1994, Petitioner was employed as Interim Director of the Guilford County Sheltered Workshop 
(Workshop), a subsidiary of GAMH. 

26. The Workshop provides vocational training for its clients and accepts contracts for the completion of various 
projects for area businesses such as the assembly of mass mailouts. 

27. Petitioner's supervisor, Billie Martin Herce, is the Area Director of GAMH. GAMH has 450 employees, 
150 additional hourly employees, and a budget of 33.8 million dollars. 

28. After Petitioner was employed, he received both a three month evaluation and a six month evaluation. 
Petitioner received a good evaluation on both occasions though by the time of the six month evaluation, some problems had 
begun to arise with Petitioner's job performance. 

29. In January of 1995, the Habilitation Technicians at the Petitioner's Workshop wrote to Ida Milan (the 
project manager of a reorganization) of the GAMH expressing their "serious concerns" about Petitioner's actions. They 
stated that the Petitioner had changed their responsibilities contrary to their job descriptions. They also stated that he had 
made them responsible only for quality control "in an effort to turn the Workshop into a plant." 

30. The letter further expressed concern with Petitioner's "lack of professionalism and knowledge of working 
with the population", his "fear-based management style", and his "lying" and "fabricated stories." 

31. The letter was signed by 12 Habilitation Technicians. They requested a meeting with Ms. Milan. A copy 
of the letter was sent to Area Director Pierce. 

32. Ms. Milan spoke with the workers and ultimately with Ms. Pierce. Ms. Rerce then discussed the matter 
with Petitioner. 

33. In April of 1995, Ms. Pierce was notified of a concern that the Workshop's Sales and Marketing Specialist, 
Percy Sears, owned stock in Deep River Industrial Products, Inc., a company which was contracting with the Workshop 
for work on projects. 

34. Mr. Sears was a salesman whose job it was to seek contracts from the community. 

35. After Ms. Kerce learned of Mr. Sears' connection with Deep River, she requested an audit of the 
Workshop. 

36. While the audit uas being done, Ms. Pierce discussed her concerns with Petitioner, who allegedly was 
assisting Mr. Sears in obtaining contracts with the Workshop. Petitioner told Ms. Pierce that there had been no contracts 
with Deep River to date. He provided no information about any pending contracts. 

37. Ms. Pierce later learned that there had been a total of $3, (XX) in contracts between Deep River and the 
Workshop. She also learned that a million dollar contract was under negotiation. 

38. Ms. Pierce determined that Mr. Sears owned 25 percent of the Deep River stock and that Petitioner knew 
of it as far back as 1994. Petitioner had not reported this conflict of interest. 



868 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



39. Reports came to Ms. Pierce's attention that Petitioner would tell different stories to different people, that 
he would go around the lines of authority and even go directly to clients, that he would search staff offices and mailboxes 
and tell his Workshop employees that they were the worst program in the State. 

40. Ms. Milan and Ms. Pierce began to speak with the employees of both the High Point and Greensboro 
Workshops. They learned that Petitioner's staff believed diat Petitioner told different stories to different people, that he had 
a management style of intimidation, that he had told his staff "you are the worst program in the state." 

41. Additionally, Ms. Milan learned from the Personnel Director that Petitioner had moved an employee out 
of a position and into another position without informing personnel. Shirley Rossen of Personnel was angry with Ms. Milan 
for not informing her that this action was taking place. Ms. Milan, however, did not know about it. 

42. On August 18, 1995, at a management meeting of the High Point and Greensboro Workshops, Petitioner 
was discussing his idea to restructure the Workshops and staff into "production and clinical categories." During that 
meeting, Patty Huggins asked if the Greensboro Habilitation Technicians had been informed of this restructuring. The 
Greensboro staff did not respond. Petitioner said he needed staff to develop a proposal by the 24th of August so that he 
could present it to Ms. Pierce. After the meeting, Ms. Huggins learned that Petitioner had forbidden the Greensboro 
Habilitation Specialists to speak at the meeting. 

43. During the subsequent disciplinary proceedings, Ms. Pierce told Petitioner not to discuss his disciplinary 
actions with other employees. She later learned that he had discussed them. She again told him emphatically in the presence 
of Ms. Milan, that he must have no further discussions or she would consider it grounds for dismissal. 

44. Ms. Pierce learned that despite her warnings. Petitioner was soliciting letters of support from his staff. 

45. On one occasion, the Housing Development Coordinator of GAMH met Petitioner on the stairwell after 
Petitioner had received a disciplinary letter. Petitioner showed him the disciplinary letter and began discussing the staffs 
complaints about him. This employee reported the meeting to Ms. Pierce. 

46. On another occasion. Petitioner told one of the Habilitation Specialists that one of her clients had told him 
that she was "uncaring." She was very upset until she spoke with the client who stated that she had never said that. 

47. Petitioner told another employee that he had been ordered by Ms. Pierce to eliminate six Habilitation 
Instructor positions. This was untrue and the employee unsuccessfully attempted to have Petitioner admit that at a meeting. 

48. During one of their meetings. Petitioner assured Ms. Pierce that he was never late with performance 
evaluations. She later learned that in fact he was. 

49. While Petitioner's job description states that he should operate with minimal supervision, Ms. Pierce had 
been called upon on numerous occasions to step in and resolve problems which were not being handled by Petitioner. 

50. Even though all sections of the GAMH were being reorganized, Petitioner's section was the only one which 
had required the Assistant Area Director to get involved on multiple occasions. 

51. Ms. Pierce testified that at each of the conferences conducted subsequent to a disciplinary letter, Petitioner 
did not speak. He submitted a prepared text and, although Ms. Pierce attempted to talk to him, he would not respond. 

52. Ms. Pierce asked Petitioner about telling Donna Gladden that a client had said she was uncaring. Petitioner 
did not respond. Ms. Pierce asked Petitioner about reclassifying an employee 

without informing Personnel. Petitioner did not respond. Ms. Pierce asked Petitioner if he had spoken with the Housing 
Development Coordinator in the hallway after she told him not to discuss his discipline. Petitioner did not respond. 

DISMISSAL PROCEDURE UNDER THE SPA 

53. The SPA provides that no State employee may be dismissed except for just cause. 



11:10 NORTH CAROLINA REGISTER August 15, 1996 869 



CONTESTED CASE DECISIONS 



54. Just as there are rules promulgated under the SPA to outline provisions for substantially equivalent 
personnel systems, there are also rules establishing disciplinary procedures for State employees subject to the SPA. 

55. The rules promulgated under the SPA for State employees provide that before a State employee can be 
dismissed, he or she must receive one or more written warnings. Those warnings must state that they are "written 
warnings", must include a plan for improvement of performance and must state the consequences if the employee does not 
improve. 

56. TTie rules fiirther provide that there must be at least one additional warning which includes a statement that 
failure to improve may result in dismissal. 

57. Additionally, the rules provide that before a State employee can be dismissed there must be a predismissal 
conference. 

58. Lastly, that rule provides that the employee must get a written notice of termination outlining with 
specificity the acts or omissions for which the employee is being dismissed. Additionally, that letter must include appeal 
rights. 

59. Throughout the disciplinary process, Billie Martin Pierce had many meetings and discussions with Petitioner 
concerning his job performance. 

60. On June 22, 1995, Ms. Pierce wrote a disciplinary letter to Petitioner informing him that she was 
considering a range of disciplinary actions "from probation to demotion to dismissal". That letter specifically enumerated 
in numerical order the items for which Ms. Pierce was considering disciplining the Petitioner. The letter notified Petitioner 
that he had five days to request a conference before disciplinary action would be taken and at that conference he would have 
the opportunity to explain himself. 

61. Ms. Pierce informed Petitioner that she would not decide on discipline until the results of the internal audit 
were given to her. 

62. On July 31, 1995, Ms. Herce conducted a meeting with Petitioner to discuss his job performance problems. 
Ms. Pierce specifically stated that the meeting would be held "outside the disciplinary process." 

63. On August 4, 1995, Ms. Pierce, Petitioner and Petitioner's attorney, met. Ms. Pierce objected to meeting 
with Petitioner's attorney on several occasions before the meeting, but Petitioner brought his attorney anyway. 

64. On August 7, 1995, Ms. Pierce again met with Petitioner to discuss his job performance problems. Ms. 
Pierce suggested that Petitioner might be better off stepping down to a different job where he would not have to do as much 
supervising. Petitioner refused and said he wished to stay in his present position. 

65. During one of Ms. Pierce's conferences with Petitioner, she read him notes kept by other employees 
concerning his management. She read the note of Shirley Rossen, Patty Huggins, Donna Gladden, Kelly Owens, Chris 
Krisopolous and the letter that was sent to Ms. Milan. Ms. Pierce identified the names of those employees and attributed 
their comments to each of them respectively. 

66. On August 11, 1995, Ms. Pierce sent Petitioner a Notice of Disciplinary Probation letter. In that letter, 
Ms, Pierce made reference to the meetings which had been held over the past months to discuss the job performance 
problems. She informed Petitioner that he was on disciplinary probation for one year. She further gave detailed and specific 
descriptions of the employment problems and she included a comprehensive plan for improvement. 

67. On August 21, 1995, Ms. Pierce wrote Petitioner another letter referenced as "Consideration of Disciplinary 
Action" in which she informed him that she was considering taking disciplinary action against Petitioner. That letter stated 
that the discipline could be from probation to demotion to dismissal. 

68. On September 7, 1995, Ms. Pierce sent Petitioner a letter referenced again as "Consideration of 
Disciplinary Action". In that letter Ms. Pierce stated that she was considering a range of discipline from probation to 
dismissal, enumerating specifically the problems with Petitioner's job performance. She notified Petitioner that he had 5 
days to request a conference. 

870 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



69. On September 27, 1995, Ms. Pierce wrote Petitioner a letter of termination. That letter enumerated the 

problems with Petitioners job performance. Since Ms. Pierce was proceeding under the Guilford County Substantially 
Equivalent personnel system, she notified Petitioner that the letter completed the Petitioner's appeal process. 

Based upon the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

Substantial Equivalency 

1. The Guilford personnel system does not have a sequence of steps in the disciplinary process. It makes no 
provision for oral warnings except to state that they are not appealable. It excludes "conduct" from supervisor's warnings, 
but gives no other provisions for personal conduct discipline. 

While the State rules require that there be an appeal up to the County Manager or Area Director at each 
step, the Guilford system provides, for example, that a written warning may be appealed to the Human Resources Director 
and no further. 

While the State rules require the establishment of an Appeals Board and a provision for an evidentiary 
hearing, the Guilford System has neither. 

2. It is concluded that the disciplinary procedures outlined in the Guilford County Personnel System are not 
substantially equivalent to the SPA. 

Just Cause 

3. Petitioner's involvement in the Deep River Contract was extremely unacceptable. Petitioner's management 
or personality style was destructive. He appears to have intentionally caused great disruption to the workplace. 

Petitioner's continued discussions of his disciplinary process were violations of a direct order. His 
falsehoods, both to his employees and to his supervisor, were unsettling and most dishonorable. 

These acts are clearly ones which require discipline. The Deep River incident alone would warrant 
dismissal. Combined, however, with the fabrications, the damaging approach to his subordinates, the violation of a direct 
order, and the need for constant intervention by his supervisor. Petitioner's behavior clearly merits dismissal. 

4. It is concluded that Respondent had just cause to dismiss Petitioner. 
Dismissal Procedure Under the SPA 

5. Since Petitioner would have been a state employee had Guilford County not been granted substantially 
equivalent status, the Petitioner's dismissal must be reviewed in terms of the State Personnel Act and the rules promulgated 
thereunder. 

6. Ms. Pierce was admittedly operating under the Guilford Personnel system. Her actions therefore were not 
intended to comport to the provisions of the State personnel rules. However, an analysis must be made as to whether the 
Petitioner received the due process opportunities to which he would have been entitled under the SPA. 

7. Petitioner received four written disciplinary letters prior to his dismissal. The number of disciplinary 
warnings therefore is more than required by the State Personnel rules. It is concluded that this requirement was met. 

8. The State Personnel rules require that a warning must inform the employee of the consequences if the 
employee's performance does not improve. TTiree of the four letters included a notification that a range of discipline was 
being considered, from probation to demotion to dismissal. It is concluded that this requirement was met. 



11:10 NORTH CAROLINA REGISTER August 15, 1996 871 



CONTESTED CASE DECISIONS 



9. The State Personnel rules provide that a written warning must have a plan for improvement. The August 
11, 1995 disciplinary warning has a lengthy and detailed plan for improvement. It is concluded that this requirement was 
met. 

10. The personnel rules provide that a letter be denoted as a "written warning". None of the letters given to 
Petitioner used the term "written warning". 

It would appear that the protection provided by this requirement is to give employees clear notice that the 
written notification is not merely a communication of concerns, but is part of the disciplinary process. After reviewing the 
letters written by Ms. Pierce and the clarity with which they notified Petitioner of their intent, it is clear that Petitioner was 
completely aware that he was in a disciplinary process which was ongoing and which might lead to his dismissal. It is 
concluded that this requirement was satisfied. 

1 1 . The State Personnel Rules include a requirement that prior to dismissal there be a statement notifying the 
employee that failure to improve may result in dismissal. Three of the letters included statements informing the Petitioner 
that Ms. Pierce was considering a range of disciplinary actions from probation to demotion to dismissal. It is concluded that 
this requirement was met. 

12. The State Personnel Rules require that there be a predismissal conference. Ms. Pierce testified that there 
were numerous conferences with Petitioner concerning his job performance outside the disciplinary process. Additionally, 
Petitioner exercised his right to a conference after each of the disciplinary letters. There were, in fact, four disciplinary 
conferences. 

The final disciplinary letter prior to the termination letter again told Petitioner that disciplinary actions were 
being considered including dismissal. A conference was held at which Petitioner would not speak. Ms. Pierce urged 
Petitioner to discuss the matters with her, but he remained silent. This last meeting occurred after the September 7 letter 
and before the September 27 termination letter. 

This conference was not designated as a predismissal conference. However, given the lengthy and very 
active disciplinary process, the numerous warnings about potential dismissal, and the acceleration of the number of job 
performance issues which continued to occur throughout the disciplinary process, it cannot be determined that Petitioner did 
not understand the gravity of his situation. Additionally, he had every opportunity available to him that a conference 
designated as "predismissal" would have afforded. It is therefore concluded that the failure to designate the last meeting as 
a predismissal conference, while such is required under the State system, is harmless error under the circumstances outlined 
above. 

13. Lastly, an employee must receive notice of dismissal in writing with specific reasons for the dismissal and 
with appeal rights. This was satisfied by the termination letter of September 27, 1995. 

The "appeals rights" which were given, were given in the context of the Guilford System, i.e., Ms. Pierce 
noted that the substantially equivalent personnel system provided that the termination letter completed the disciplinary process. 
However, the State personnel system would have provided Petitioner with an appeal to the State Persoimel Commission. 

Petitioner, however, did appeal to the SPC and has been provided that appeal in the hearing at hand. 
Petitioner has suffered no harm. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

1. That the SPC reconsider the certification of the Guilford County disciplinary portion of its personnel system. 

2. That the Respondent's determination of just cause in dismissing the Petitioner be Affirmed. 

3. That tlie procedure followed in Petitioner's dismissal be found to have been in compliance with the SPA. 

4. TTiat the Respondent's dismissal of Petitioner be Affirmed. 



872 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina State Personnel 
Commission. 

This the 19th day of July, 1996. 



Dolores Nesnow Smith 
Administrative Law Judge 



11:10 NORTH CAROLINA REGISTER August 15, 1996 873 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF CRAVEN 96 DOJ 0420 



JERRY GLENN MONETTE, 
Petitioner, 



NORTH CAROLINA SHERIFFS' EDUCATION 
AND TRAINING STANDARDS COMMISSION, 
Respondent. 



The above entitled contested case was commenced by the filing of a request for the appointment of an Administrative 
Law Judge to preside pursuant to N.C.G.S. 150B-40(e). A hearing was held before the Honorable Fred G. Morrison, Jr., 
Senior Administrative Law Judge, on July 22, 1996, in Raleigh, North Carolina. 

APPEARANCES 

Petitioner: Jerry Glenn Monette, pro se. 

Respondent: John J. Aldridge. IIL Assistant Attorney General. 

ISSUE 

Is Petitioner's certification as a justice officer properly subject to revocation on the grounds that he knowingly 
assisted another in attempting to gain certification by fraud or deceit in that he failed to report a positive urinalysis drug 
screen for the deputy sheriff applicant? 

FESfDINGS OF FACT 
(STIPULATED FACTS) 

1. Both parties are projjerly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both 
parties received proper notice of hearing required pursuant to N.C.G.S. 1503-38. 

2. The North Carolina Sheriffs' Education and Training Standards Commission (Respondent) has the authority granted 
under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 
10, Subchapter lOB, to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such 
certification. 

3. That 12 NCAC lOB .0204(c)(3) provides: 

(c) The Commission may revoke, deny, or suspend the certification of a justice officer when the Commission 

finds that the applicant for certification or certified justice officer: 

(3) has knowingly and designedly by any means of false pretense, deception, fraud, misrepresentation 

or cheating whatsoever, aided another in obtaining or attempting to obtain credit, training, or 
certification from the Commission or the North Carolina Criminal Justice Education and Training 
Standards Commission. The Rule shall also apply to obtaining or attempting to obtain in-service 
firearms requalification as required by 12 NCAC lOB .2000 and .2100. 

4. That 12 NCAC lOB .0410(a) provides: 

(a) Each agency shall report in writing to the Division all refusals and all positive drug screenings 

obtained from applicants and lateral transfers pursuant to 12 NCAC lOB .0301(6) or .0406(l5)(4) 
unless the positive result has been explained to the satisfaction of the agency's medical review 
officer who shall be a licensed physician. 



874 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



5. On September 24, 1987, the Petitioner was granted probationary certification as a deputy sheriff through the 
Respondent and issued certification number PRH242021832. On September 24, 1987 the Petitioner was granted general 
certification as a deputy sheriff through the Respondent and issued general certification number GNH242021832. 

6. On December 4, 1995, the Sheriffs' Standards Division received an anonymous letter indicating that an employee 
with the Craven County Sheriffs Office, Jeffrey P. Bundy, had previously tested positive for controlled substances and that 
the sheriff of Craven County, Jerry G. Monette, was aware of such positive urinalysis test result. 

7. On November 18, 1994, an applicant for the position of deputy sheriff with the Craven County Sheriffs Office 
submitted to a required urinalysis screen pursuant to 12 NCAC lOB .0301. This urinalysis test result was reported back by 
Corporate Support Systems to be positive for cocaine and marijuana. Notification of this positive result was personally given 
to Sheriff Jerry G. Monette on November 23, 1994. 

8. The applicant produced a positive result on a drug screen for cannabinoids, (marijuana) and cocaine, administered 
in accordance with the procedures authorized and mandated by the United States Department of Health and Human Services 
for Federal Workplace Drug Testing Program. The United States Department of Health and Human Services, and the 
Respondent's Rules found at 12 NCAC IDE .0301(6), require, and it is so stipulated that the initial screening test of the 
applicant's urine was conducted using the immunoassay method, and the confirmation test on the Petitioner's urine sample 
was conducted using the gas chromatography/mass spectrometry (GC/MS) method of testing. The positive result for 
cannabinoids and cocaine revealed a level above the threshold established for a screen and confirmation test conducted in 
accordance with the standards established by the United States Department of Health and Human Services for Federal 
Workplace Drug Testing Program. A review by a medical review officer indicated that the applicant's positive drug screen 
was proper in form and testing procedures and was not related to a medically indicated cause. 

9. Pursuant to 12 NCAC lOB .0410 this applicant's positive urinalysis drug screen was required to be reported to the 
Sheriffs' Standards Division. Such appUcants would be ineligible to hold certification as a justice officer for a minimum of 
period of five years. 

10. Despite the positive urinalysis result the applicant was maintained in a nonswom position of dispatcher with the 
Craven County Sheriffs Office throughout the remainder of 1994 and into 1995. 

11. On January 23, 1995 Sheriff Jerry Monette attended a seminar conducted by officials with the Sheriff Standards 
Division for the purpose of ensuring newly elected Sheriffs' in North Carolina were aware of the requirements for 
certification of deputy sheriffs and jailers. In this seminar, attended by Sheriff Monette, he learned that he as the sheriff 
had an affirmative obligation to repwrt all positive urinalysis test results for applicants as deputy sheriff and jailer positions. 
Despite having knowledge of his duty to make notification at this point of the previous positive test result on the applicant, 
the sheriff failed to do so. The attendees at this conference were notified that these positive test results were maintained so 
that all applicants would be ineligible to hold certification as a justice officer for a period of five years. 

12. On or about October 1995 Sheriff Jerry G. Monette submitted an application package on Jeffrey P. Bundy for 
certification as a sworn deputy sheriff to the Respondent. In furtherance of this application process Sheriff Jerry G. Monette 
did not disclose the previous positive drug test result. 

13. The failure to make notification to the Sheriffs' Standards Division of the initial positive urinalysis drug screen for 
cocaine and marijuana on the deputy sheriff applicant by the Petitioner, while knowing it to be required, constitutes a 
violation of 12 NCAC lOB .0204(c)(3) and 12 NCAC lOB .0410(a). 

14. By letter dated November 28, 1996, the Petitioner was notified by the Director of the Sheriffs' Standards Division, 
Joan G. Neuner, that probable cause had been found to believe that his certification as a deputy sheriff should be revoked 
for knowingly and designedly aiding another in attempting to obtain certification from the Commission and for failure to 
report to the division the previous positive drug screen on the deputy sheriff applicant. 

AD.IUDICATED FACTS 

15. Julia A. Lohman, Assistant Director of the Sheriffs' Standards Division, testified that the Petitioner holds 
certification as a deputy sheriff through the N.C. Sheriffs' Education and Training Standards Commission and has held such 
certification since 1986. The Commission has no authority to certify the office of Sheriff. If and when the Petitioner were 



11:10 NORTH CAROLINA REGISTER August 15, 1996 875 



CONTESTED CASE DECISIONS 



to leave the elected office of sheriff, he would be entitled to reinstatement of his deputy sheriff certification. In the October 
to November 1995 time frame, the Sheriffs' Standards Division received an appointment application package on Jeffrey 
Bundy as a deputy sheriff in Craven County. This package included a Personal History Statement, urinalysis consent form, 
and a background investigation on Jeffrey Bundy. This package was placed in a pending status to retrieve additional 
documentation required for certification. In December 1995 the Sheriffs' Standards Division received an anonymous letter 
stating that Jeffrey Bundy had previously tested positive for drugs in a urinalysis screen around November 1994, when he 
was an applicant as a deputy sheriff with the Craven County Sheriffs Office. 

16. The Sheriffs' Standards Division verified that Jeffrey Bundy had a previous positive drug screen for cocaine and 
marijuana by contacting the designated urinalysis testing laboratory for Craven County Sheriffs Office. On December 15, 
1995, Sheriffs' Standards Division retrieved documentation from Corporate Support Systems, the urinalysis testing company 
for the Craven County Sheriffs Office which indicated the Petitioner was a deputy sheriff applicant with the Craven County 
Sheriffs Office in November 1994 and that on November 18, 1994 the Petitioner submitted a urine sample to be tested for 
the presence of illegal drugs as a part of this application process. On November 19, 1994 the Petitioner's urine tested 
positive for cocaine and marijuana. The Petitioner was notified of these positive results on November 23, 1994. 

17. Ms. Lehman interviewed Sheriff Monette on December 19, 1995 concerning the positive urinalysis results, and 
Sheriff Monette told her that Jeffrey Bundy was an applicant for employment as a deputy sheriff with his agency in 
No\ember 1994. Sheriff Monette said that he was not aware of the Commission rules at the time of the positive urinalysis 
result requiring him to submit the results. However he subsequently became aware of these rules as a result of a seminar 
he attended in January 1995 conducted by the Sheriffs' Standards Division. Sheriff Monette told Ms. Lohman that he had 
told Major Sam Bundy, Jeffrey Bundy's father, about the results and helped him locate a rehabilitation center in the early 
months of 1995. Sheriff Monette hired Jeffrey Bundy as a Dispatcher with the Craven County Sheriffs Office after his 
p>ositive urinalysis result. Sheriff Monette indicated that no one but him had seen the positive drug screen results. Sheriff 
Monette indicated that he had heard that Jeffrey Bundy had resigned from the New Bern Police Department prior to 
November of 1994 because he was asked to take a urinalysis test. Jeffrey Bundy did not indicate his prior use of cocaine 
on his Personal History Statement dated October 23. 1995. 

18. In January 1995 the Sheriffs' Standards Division conducted seminars across the State to apprise newly elected 
Sheriffs of the Commission's standards and requirements. During this seminar, attended by the Petitioner, the Sheriffs' 
Standards Division staff informed the attendees that all applicants for deputy sheriff or jailer positions who test positive for 
illegal drugs would be prohibited from holding certification through the Commission for a period of five (5) years. Positive 
drug screens must be communicated to the Sheriffs' Standards Division so that they can maintain a list of these positive drug 
screens to prevent the applicant's receiving certification through the Commission prior to the expiration of five years from 
the positive urinalysis result. 

19. In February 1996, the results of Ms. Lehman's Investigation were presented to the probable cause committee of the 
Sheriffs' Commission. Sheriff Monette appeared at this probable cause committee and indicated that he accepted full 
responsibility for not revealing the positive urinalysis drug screen of Jeffrey Bundy. 

20. Captain George Brown testified that he personally provided documents to Jeffrey Bundy In November 1994, In 
furtherance of the process to become a deputy sheriff with the Craven County Sheriffs Office. These documents included 
a urinalysis consent form. Jeffrey Bundy was subsequently employed as a dispatcher by Sheriff Monette in the Craven 
Count) Sheriffs Office. In October 1995 Captain Brown was instructed to forward an application package for certification 
to the Sheriffs' Standards Division on Jeffrey Bundy as a deputy' sheriff by the Petitioner. Captain Brown had Jeffrey Bundy 
complete another Personal History Statement and this document, along with Captain Brown's background investigation, was 
forwarded to the Sheriffs' Standards Division. Captain Brown did not have any knowledge of Jeffrey Bundy's prior positive 
urinalysis test results. Captain Brown believes that Sheriff Monette is an honorable person and is best suited for the position 
of sheriff in Craven County. Captain Brown fully supports Sheriff Monette. 

21. Major Sam Bundy testified that he is the father of Jeffrey Bundy. Major Bundy testified that he was informed of 
the positive drug screen on his son by the sheriff In the early months of 1995. Major Bundy assisted Jeffrey Bundy in 
receiving rehabilitation for his positive drug screen which he believes was for a duration of six weeks. Major Bundy did 
not have responsibilities for notification of the positive drug screen to the Sheriffs' Standards Division nor for the processing 
of papenvork for applicants as deput}' sheriffs or jailers. 

22. Sheriff Monette testified that he has been the sheriff of Craven County since November 1994. Sheriff Monette was 
informed of the positive drug screen on Jeffrey Bundy three days after he took office. TTie Sheriff indicated that he did not 

876 NORTH CAROLINA REGISTER August 15, 1996 11:10 



CONTESTED CASE DECISIONS 



know of his requirements to notify the Sheriffs' Standards Division of positive uminalysis screens at this time. Sheriff 
Monette talked with Jeffrey Bundy about his problem after he saw the positive drug screen and took him to Rocky Mount 
for rehabiUtation. After rehabihtation Sheriff Monette hired Jeffrey Bundy as a non-sworn dispatcher. Sheriff Monette had 
heard rumors that Jeffrey Bundy had left the New Bern PoUce Department because of his refusal to take a urlnanalysis test. 
While Jeffrey Bundy was serving as a dispatcher in the early months of 1995, Sheriff Monette was approached by an officer 
with the New Bern Police Department and an agent with the State Bureau of Investigation concerning Jeffrey Bundy's prior 
drug use. 

23. In October 1995, the Sheriff directed Captain Brown to forward a package for certification on Jeffrey Bundy to the 
Sheriffs' Standards Division because Jeffrey Bundy's certification with the Criminal Justice Commission was about to expire. 
In January 1995, Sheriff Monette attended a seminar conducted by the Sheriffs' Standards Division wherein he learned of 
his obligation to submit positive urinalysis results to the Sheriffs' Standards Division. Sheriff Monette knew that if he 
divulged the positive urinalysis results on Jeffrey Bundy in October 1995 that Jeffrey Bundy would not have received 
certification. Sheriff Monette chose not to divulge this information to the Commission because he had promised to help 
Jeffrey Bundy previously. Sheriff Monette did not review the application documents completed by Jeffrey Bundy when they 
were submitted in October 1995. 

24. Sheriff Monette expressed regrets for not divulging the previous positive urinalysis result and indicated that he was 
thinking with his heart and not with his head. Sheriff Monette is 37 years of age and has an Associates Degree in Criminal 
Justice. He is working on a Bachelors Degree in Criminal Justice. Sheriff Monette entered law enforcement In 1985. He 
intends to run for Sheriff again in 1998. Sheriff Monette is a member of the Masons, Scottish Rights, York Rights, and is 
Chairman of the Community Penalties Board in Craven. He is a member of the First Baptist Church in Craven County and 
works with the Giddeons. 

CONCLUSIONS OF LAW 

Based on the foregoing Findings of Fact, the undersigned makes the following Conclusions of Law: 

1. All parties were properly before this Administrative Law Judge and that jurisdiction and venue were proper and 
that both parties received proper Notice of Hearing. 

2. The N.C. Sheriffs' Education and Training Standards Commission has the authority granted under Chapter 17E 
of the North Carolina General Statutes to establish minimum standards for the certification of persons to be employed and 
retained as justice officers (deputy sheriffs and jailers). 

3. The Petitioner knowingly aided Jeffrey Bundy in attempting to obtain certification from the Commission by not 
revealing Jeffrey Bundy's positive urinalysis drug screen for cocaine and marijuana in November 1994. This omission was 
material. These actions constitute a violation of 12 NCAC lOB .0204(c)(3). 

4. The Petitioner's failure to report to the division the previous positive drug screen obtained from Jeffrey Bundy while 
an applicant for the position of deputy sheriff with the Craven County Sheriffs Office constitutes a violation of 12 NCAC 
lOB .0410(a). 

5. The Respondent may properly revoke the Petitioner's certification as a justice officer. 

PROPOSED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby proposed that the N.C. Sheriffs' 
Education and Training Standards Commission revoke the Petitioner's certification as a justice officer for a period of five 
years, but that the Commission consider in light of the surrounding circumstances, placing the Petitioner on a period of 
probation for five years. 

ORDER 

IT IS HEREBY ORDERED that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearing, Post Office Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with N.C.G.S. § 150B-36(b). 



11:10 NORTH CAROLINA REGISTER August 15, 1996 877 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to the Proposal For Decision, to submit Proposed Findings of Fact and to present oral and written arguments to 
the agency. The agency is required by N.C.G.S. § 150B-40(e) to serve a copy of the final agency decision on all parties 
and to furnish a copy of the final agency decision on the parties Attorney of Record and to the Office of Administrative 
Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Sheriffs' Education and 
Training Standards Commission. 

This the 26th day of July, 1996. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



878 NORTH CAROLINA REGISTER August 15, 1996 11:10 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



Ihe North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and 
chapters, are mandatory. The major subdivision of the NCA C is the title. Each major department in the North 
Carolina executive branch of government has been assigned a title number. Titles are fiirther broken down into 
chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions 
to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/N utrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Mantal and Family Therapy 


31 


18 


Secretary of State 


Medical Exarmners 


32 


19A 


Transportation 


Midwifery Jomt Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursmg 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Adrranistrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical TTierapy Examiners 


48 






Plumbing, Heating & Fu-e Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Vetennary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



11:10 



NORTH CAROLINA REGISTER 



August 15, 1996 



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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1995 



DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


201 00 00 


$63.00 


$90.00 


201 10 05 


$21.00 


$30.00 


201 10 33 


$17.50 


$25.00 


202 00 00 


$98.00 


$140.00 


202 15 09 


$28.00 


$40.00 


202 1 5 34 


$21.00 


$30.00 


202 1 5 43 


$21.00 


$30.00 


202 15 48 


$21.00 


$30.00 


202 15 52 


$21.00 


$30.00 


203 00 00 


$7.00 


$10.00 


204 00 00 


$87.50 


$125.00 


204 1 5 02 


$12.00 


$40.00 


204 15 03 


$24.50 


$35.00 


204 1 5 06 


$14.00 


$20.00 


204 15 09 


$14.00 


$20.00 


204 15 10 


$14,00 


$20.00 


204 15 16 


$24.50 


$35.00 


205 00 00 


$56.00 


$80.00 


205 15 02 


$24.50 


$35.00 


206 00 00 


$21.00 


$30.00 


207 00 00 


$21.00 


$30.00 


208 00 00 


$7.00 


$10.00 


209 00 00 


$31.50 


$45.00 


210 00 00 


$346.50 


$495.00 


210 20 10 


$45.50 


$65.00 


210 20 20 


$31.50 


$45.00 


210 20 30 


$77.00 


$110.00 


210 20 40 


$119.00 


$170.00 


210 20 41 


$31.50 


$45.00 


210 20 42 


$31.50 


$45.00 


210 20 43 


$28.00 


$40.00 


210 20 44 


$17.50 


$25.00 


210 20 45 


$35.00 


$50.00 


211 00 00 


$63.00 


$90.00 


211 1001 


$56.00 


$80.00 


211 10 04 


$24.50 


$35.00 


211 1005 


$17.50 


$25.00 


211 1006 


$28.00 


$40.00 


211 1008 


$21.00 


$30.00 


212 00 00 


$63.00 


$90.00 


212 1007 


$21.00 


$30.00 


212 1009 


$31.50 


$45.00 


212 10 1 1 


$17.50 


$25.00 


213 00 00 


$77.00 


$110.00 


213 15 06 


$14.00 


$20.00 


213 20 00 


$31.50 


$45.00 


213 15 12 


$14.00 


$20.00 


213 15 13 


S14.00 


$20.00 


213 15 14 


$14.00 


$20.00 


213 15 15 


$14.00 


$20.00 


214 00 00 


$31.50 


$45.00 


214 00 08 


$17.50 


$25.00 


214 00 11 


$14.00 


$20.00 


215 00 00 


$276.50 


$395.00 


215 15 00 


$115.50 


$165.00 


215 15 10 


$49.00 


$70,00 


215 15 20 


$49.00 


$70.00 


215 15 30 


$56.00 


$80.00 


215 15 31 


$35.00 


$50.00 


215 15 32 


$17.50 


$25.00 



Title 1 - Dept. of Administration - Full Title 

Division of Purchase & Contract 
Federal Block Grant Funds 

Title 2 - Dept. of Agriculture - Full Title 

Food &. Drug Protection Division 
Structural Pest Control Committee — 

Agricultural Markets 
Plant Industry 
Animal Industry 

Title 3 - Dept. of State Auditor - Full Title 

Title 4 - Dept. of Commerce - Full Title 

Alcoholic Beverage Control Commission 

Banking Commission 

Credit Union Division 

Savings & Loan Division 

Industrial Commission/Workers Compensation 

Savings Institutions Division 



Title 5 - Dept. of Corrections 

Division of Prisons 



Full Title 



Title 6 - Council of State - Full Title 

Title 7 - Dept. of Cultural Resources - Full Title 

Title 8 - State Board of Elections - Full Title 

Title 9 - Offices of the Governor & Lt. Governor - Full Title 

Title 10 - Dept. of Human Resources - Full Title 

Licensing of Health Facilities 

Detention Facilities 

Mental Health & Rehabilitation Services 

Social Services 

Children Services/Day Care 

Services for the Aging 

Services for the Blind 

Services for the Deaf & Hard of Hearing 

Employment Opportunities 

Title 1 1 - Dept. of Insurance - Full Title 

Insurance 

Consumer Services 

Fire & Rescue Services 

Agent Services 

Engineering & Building Codes 

Title 12 - Dept. of Justice - Full Title 

Private Protective Services 

Police & Sheriff's Education & Training Standards 

NC Alarm Systems Licensing Board 

Title 13 - Dept. of Labor - Full Title 

Mine & Quarry Safety 

General Safety/OSHA 

Wage & Hour Rules 

Boiler & Pressure Vessel Safety 

Apprenticeship & Training 

Elevator & Amusement Device Safety 

Title 14A - Dept. of Crime Control & Public Safety - Full Title 

Alcohol Law Enforcement 
Victims Compensation Fund 

Title 15A - Dept. of Environ., Health, & Nat. Resources - Full Title 

Environmental Management 
_ Air Quality 
Water Quality 

Land & Waste Management 
Solid Waste Management 
Underground Storage Tanks 



DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


215 15 40 


«31.50 


$45.00 


215 25 00 


« 105.00 


$150.00 


215 25 10 


$42.00 


$60.00 


215 25 20 


$35.00 


$50.00 


215 25 30 


$59.50 


$85.00 


215 25 31 


$17.50 


$25.00 


216 00 00 


*21.00 


$30.00 


216 1006 


$21.00 


$30.00 


217 00 00 


$91.00 


$130.00 


217 15 10 


$31.50 


$46.00 


217 15 20 


$56.00 


$80.00 


217 15 27 


$31.50 


$45.00 


217 15 29 


$21.00 


$30.00 


218 00 00 


$21.00 


$30.00 


218 10 06 


$21.00 


$30.00 


219 00 00 


$63.00 


$90.00 


219 1002 


$28.00 


$40.00 


219 10 03 


$35.00 


$50.00 


220 00 00 


$31.50 


$45.00 


221 00 00 


$143.50 


$205.00 


222 00 00 


$0.00 


$0.00 


223 00 00 


$7.00 


$10.00 


224 00 00 


$7.00 


$10.00 


225 00 00 


$42.00 


$60.00 


226 00 00 


$7.00 


$10.00 


227 00 00 


$42.00 


$60.00 


299 99 98 


$375.00 


$750.00 


266 00 00 


.. 


$750.00 


266 50 00 


-- 


$250.00 


288 50 00 


$295.00 


$475.00 


288 80 00 


$40.00 


$75.00 


299 90 00 


$16.00 





Coastal Management 

Environmental Health 

Radiation/Nuclear Waste 

Sanitation 

Public Health 

Intoxilizer & Breathalyser 

Title 1 6 - Dept. of Public Instruction - Full Title 

Elementary & Secondary Education 

Title 1 7 - Dept. of Revenue - Full Title 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - Full Trde 

Securities Division 

Title 19A - Dept. of Transportation - Full Title 

Division of Highways 
Division of Motor Vehicles 

Title 20 - Dept. of the State Treasurer - Full Title 

Title 21 - Occupational Licensing Boards - Full Title 

Trde 22 - Administrative Procedures Act - Repealed 

Trde 23 - Dept. of Community Colleges - Full Title 

Trde 24 - Independent Agencies - Full Trde 

Tide 25 - Office of State Personnel - Full Trde 

Tide 26 - Office of Administrative Hearings - Full Trde 

Tide 27 - North Carolina State Bar - Full Title 

North Carolina Administrative Code - Full Code 

(Add $85.00 Shipping and Handling! 

CD-ROM North Carolina Administrative Code 
CD-ROM North Carolina Administrative Code 

(When purchased with the Full Code in Print) 

Master Index 

Master Table of Contents 

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Binderls}: Titled 'Oinoisl Nont> Carolled Adrrjnistittive Code' 
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Subtotal 




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